*1 [990 174] NYS2d City Litigation. In the Matter of New York Asbestos Ruby E. Individually and as Executrix of Dave Konstantin, Deceased, v 630 Konstantin, Respondent,
John Third Av- Liquidat- al., Defendants, et and Tishman enue Associates ing Corporation, Appellant. Kay Dummitt, and as Doris Individually Executrix of Ronald Dummitt, Deceased, Respondent, al., v A.W. Chesterton et Defendants, and Co., Appellant. Department, July
First *5 OF COUNSEL APPEARANCES (E. City Winthrop Pillsbury York LLP, Pittman New Shaw counsel), Keyko of Anne C. and Milonas, David G. Leo Lefever (John Larry City Nonna, Boggs M. LLP, New York and Patton counsel), for Tishman Kate S. Woodall and P. Schiffer appellant. Corporation, Liquidating (Michael City Ross, of the J. York LLP, New
K&L Gates pro Pennsylvania Eric RJ. Cottle vice, hac admitted bar, counsel), appellant. Angela DiGiglio Co., for Crane Fox, (Seth Dymond City A. LLP, New York & Belluck counsel), respondents. THE COURT OF
OPINION J.P Mazzarelli, Ruby decedent, Konstantin’s 1973 to From (Konstantin) carpenter at as a worked Konstantin
Dave John defendant Tishman sites where construction Manhattan two (TLC) general Dur- Corporation contractor. Liquidating was the proximity regular ing close basis he worked on that time joint compound, ex- and he was drywall who sanded contractors compound sanding. pre-mixed posed the dust from Gypsum, Georgia Pacific, Kaiser manufactured super- companies, TLC Gypsum asbestos. and contained U.S. building sites at conducted controlled work vised steps protect employed, took no but Konstantin where exposure It dust. to asbestos the hazards the workers approximately at of those hazards that it became aware admits *6 working Indeed, at the sites. the time that Konstantin was dangerous early appears as that TLC knew that asbestos was as working carpenter, 1969. Before as a Konstantin worked at a gas early part from the late As station, 1960s 1970s. of job performed jobs, sanding duties, he hundreds of his down brake brake by
pads Corporation. made Bendix the January diagnosed 2010, In with mesothe- Konstantin vaginalis, tunica an cancer lioma of the asbestos-related of the lining surgeries, including tissue the testicles. He endured five scrotum; the of one testicle his two removal and rounds of chemotherapy; “broad-ranged” By and one round radiation. pleura, spread 2010, the the had to his summer of mesothelioma lungs. began develop the membrane lines the Konstantin symptoms, chest-related and endured a simultaneous course of pain-reducing necessary and other treatment directed to the groin nearly years of, in words, and chest. He suffered three pain swelling,” and which “extreme “unbearable” he characterized as often pain
and a “10 out of 10” on the scale. Konstan- 6, tin died on June 2012. Kay 1988,
From Doris decedent, Dummitt’s (Dummitt), Ronald Dummitt an in the enlisted man United Navy. States From 1960 to Dummitt served on seven naval typical destroyer vessels as a boiler technician. The naval had containing approximately rooms, two boiler each 600 valves. The restricted valves or admitted the flow of steam or other equipment. They gaskets, fluid into the contained which were ring-like components among things, seal, used to other the Packing internal bonnet. valve was also used the valves; with packing rope-like awas material used to seal valve stem. Lagging pads wrapped were on valves for insulation. These components routinely replaced extremely were as a result hot environment around the valves. majority ships valves used Dummitt worked by type
on were manufactured defendant Crane For each Co. provided drawing identifying specific valve, Crane a detailed components system the exact and which the valve was to be purpose furnishing diagram used. The was to create Navy exactly “standardization,” so the would know replacement components to with each Crane use valve. also cre- symbol Navy-specific example, ated numbers, that, so components specific system correct for a valve and could be component determined reference to a table. every components gaskets,
While not Crane valve used as such packing, lagging pads of asbestos, made those that did were drawings. sup- typically valves, in the For these identified Navy original gaskets packing, plied asbestos made with manufacturers, “Cranite,” that was later branded as other component asbestos brand. The standard Crane’s in-house assigned symbol components were “1108.” The asbestos typically components were 85% asbestos 15% rub- successfully Navy time, Crane lobbied the binder. Over ber *7 by components replace made other manufacturers with Cranite. packing, lagging pads gaskets and the In addition to the were pads provide lagging meant asbestos. The were insula- also equipment requirement for all that valves, for the a would tion temperature degrees. Navy higher of 125 run than a pads prior required Indeed, use. Crane to test these Naval Navy’s helped manual, the machine “Naval write specifically Machinery,” in directed the use of which asbestos for insulation. exposure that his to asbestos came from testified
having admitted, however, it maintain the valves. He components and that caused not the initial use of valves was ships he too dust, of asbestos since the served were the release exposed original components. him old for to have been components process replacing Rather, was replaced, exposure. component needed to be When a caused scraped gaskets would need to be or wire- the deteriorated Packing pulled would be off with a hook brushed off the valve. compressed addition, In before mainte- air. and blasted with lagging pads performed, the needed nance of the valves could be Indeed, Dummitt stated removed, also created dust. to be exposed impossible dust not to be to asbestos that it was almost removing pads. he never Dummitt conceded that when supplied products exposed or that were either to asbestos from by sold Crane. April diagnosed pleural in with mesothelioma
Dummitt was “very procedures painful” thoracentesis He endured four 2010. surgery lungs, “crushing” pressure in thoracic to relieve chemotherapy. complete lung collapse, and three rounds of derivatively this action Konstantin, commenced and his wife among alleging against liable under TLC, others, that TLC was controlling negligently supervising § Labor Law 200 for directly drywall subcontractors, and liable work of power-sweeping negligence workers’ for its own common-law greater dust created additional activities, which repre- derivatively exposure. who were Dummitt, and his wife lawyers sented the same as Konstantin wife, and his com- separate against among alleging menced a action Crane, others, negligently failing that Crane acted to warn Dummitt of the exposure components hazards of asbestos for the used with its negligence proximate valves, and that such was a cause of his injuries. grouped
The two actions were awith cluster of 10 cases and assigned plaintiffs to an in extremis calendar. Three of the suf- lung Upon fered from cancer and seven from mesothelioma. mo- plaintiffs, tion including all of the the seven mesothelioma cases, joint Dummitt’s,
Konstantin’s and were set for a trial. consolidating rejected In the cases, the trial court defendants’ specific commonality occupa- contention that of work sites and necessary finding tions was consolidation, that a strict requirement judicial construction of that would not conserve re- litigation expenses. sources or reduce The court noted that in plaintiffs cluster, mesothelioma five were ships construction alleged trade, and two worked exposure pumps component parts. and valves and their *8 The court determined overlap, that the medical evidence would overlap, the “state-of-the-art” evidence would and there were among types sufficient commonalities of work and manner exposure to warrant consolidation. began, Before the trial five of the mesothelioma settled, cases leaving only They Konstantin’s and Dummitt’s to be tried. were July August tried Only between 5, 2011 and 17, 2011. Konstan- tin enough testified trial; live at Dummitt was not well to come jury excerpts court, to videotaped and the dep- viewed from injuries, osition. TLC was found 76% liable for Konstantin’s and joint compound each of the three manufacturers 8% liable. The jury damages past awarded pain Konstantin of million for $7 suffering, pain and suffering, million for future $12 and $64,832 past earnings, for a earnings, lost $485,325 and for future lost damages. They total of more than million in $19 also found that TLC was reckless. injuries,
Crane was held 99% liable for Dummitt’s Elliott, and negligence another failing defendant, liable, 1% for their to dangers warn Dummitt about the of asbestos. The deter- negligence proximate mined that such was a cause of Dum- injuries mitt’s and that Crane was reckless. Dummitt was including awarded a total of pain million, $32 million for $16 suffering. and
TLC moved arguing, to set aside the verdict, Konstantin inter alia, that the trials should not have been consolidated, that jury’s improper, fault allocation of was that the evidence did not finding support damage reckless, that TLC was and that the compensation from reasonable awards deviated and should be granted The court TLC’s motion to the remitted. ting extent of set- damages ordering aside the verdict and a new trial on the damages, stipulated unless Konstantin issue reduce the past pain suffering awards to million for and and mil- $4.5 $3.5 pain suffering. future and The lion for award broke down per $157,000 month based on about Konstantin’s 33 months of pain suffering (likely) past pain and and 18 months of future suffering. accepted and Konstantin the remittitur award, judgment was entered. sought arguing, verdict, Crane to set aside the Dummitt inter placement products it liable alia, that was not for the it did not manufacture into the stream of commerce. Crane contended asbestos-containing components that since the were manufac- parties, third tured unrelated it could not be held liable for a concerning failure to warn of asbestos products. argued jury’s finding TLC, Like Crane that the those aside, of recklessness should be set that the allocation of fault damages improper, and should be remitted. granted only Crane’s motion to the extent of reduc- court ing damages past pain Dummitt’s million for and suffer- $5.5 suffering. ing pain doing, In million for future so $2.5 rejected theory that it could not be the court Crane’s place liable asbestos-containing components because it did not into the stream of commerce. The court found that compo- that the liable because knew or should have known conjunction nents, meant to be with its which were used likely product, therefore hazard- contained asbestos and were argument despite that, ous. The court noted Dummitt’s *9 liability solely contrary, on Crane’s was not based whether asbestos-containing components was foreseeable to Crane that products, be used with its but rather on “circumstances would strengthen and the connection between Crane’s valves gaskets, packing, and insulation.” defective judg- stipulated damages, Dummitt the reduction in and $4,438,318.87 favor, in in his ment entered the amount of accounting certain setoffs to which Crane was entitled. after for (but Crane) argues that the two actions should not TLC not they factual consolidated because involved different have been legal that the difference between the work issues. It asserts Navy ships vast, of and construction sites is as is environments engaged during plaintiffs’ in the nature of decedents were work types exposures. TLC focuses on the different of their products also having exposed, the two men were one worked to which components pumps on in the used valves and with asbestos joint ships, having near dust from com- and the other been pounds. and Dummitt TLC also asserts Konstantin were lengths exposed time, Dummitt to asbestos for different with being exposed many ships on different between 1960 and 1976 exposed 1977, from 1974 to a fraction of Dum- and Konstantin mitt’s time. improper
TLC further contends that consolidation was plaintiffs’ because decedents suffered from different mesothe- subtypes, having pleural mesothelioma lioma with experiencing lining it in the of the and Konstantin testicles. stages illnesses, at different of their decedents also were Dum- being gravely testify live, mitt so ill he could not whereas Kon- enough jury. appear alleges stantin was well before TLC gravely so much more ill than that because Dummitt was Kon- danger jury conflating there a stantin, two their minds. argues plaintiffs’ pursuing
TLC also decedents were dif- legal advancing product theories, ferent liability/failure since Dummitt was a asserting claim,
to warn and Konstantin was § negligence claim and a violation of Labor 200. TLC Law trying together jury required contends that these two cases grapple liability to through different with elements and to sort only evidence,
voluminous much of which was relevant to one case or the other. directly
TLC also asserts that the decision to consolidate led confusing disjointed trial, to a different with witnesses focusing recovery, the different cases on different theories following day. example, sometimes each other on the same For Jacqueline experts, began Moline, Dr. one of Konstantin’s testifying July by on 2011. She was followed Dummitt’s deposition, video and then Konstantin’s direct examination. testimony interrupted testimony Konstantin’s was then oncologist, portion Dummitt’s which was followed another deposition focusing pain suffering. Dummitt’s video on testimony July Konstantin then resumed his direct on 15. Later July trial, 26, 2011, in the read Konstantin deposition testimony DeBenedittis, of Charles an executive of Speyer, Tishman from an unrelated case. This was followed testimony concerning only Dummitt’s case. More than a week testimony concerning later, Konstantin resumed.
241 Defendants on a case that was put similarly disjointed. First, 2 3, on and revolved August testimony around Dummitt’s case, followed Dr. Michael Siroky, Konstantin-only witness, testimony whose was interrupted by testimony from two more Siroky, Dummitt witnesses. due to scheduling issues, never stand, the retook completing testimony by videotape. TLC the fact that the emphasizes court repeatedly acknowledged for these apologized scheduling issues. It further states that was jury given confusing and misleading information on For causation. it to the fact that example, points Dr. Moline, Konstantin’s testified expert, concerning whether sweeping dust, could create asbestos fiber which was directly related to However, causation Konstantin’s case. plaintiffs’ counsel told jury testifying Dummitt’s, Moline was and not Kon- stantin’s, case. of damages,
On issue TLC contends that the testimony illustration, also As an confusing. points fact that counsel told the that Dr. Moline was plaintiffs’ testifying claim, to and not as solely as Dummitt’s to specifics Konstantin case, but then Dr. Moline gave general testimony concerning pain associated with mesothelioma without men. distinguishing between two
Initially,
the issue of consolidation is
before us
properly
Konstantin
reject
plaintiffs
we
contention that
not
an
taking
interlocutory
order,
consolidation
appeal
TLC waived its
to our
right
judgment
appeal
review.
(see
[1]).
order
5501
In
brings up
[a]
consolidation
CPLR
circumstance,
had
that order
obligation
appeal
this
TLC
no
separately
objection
after it was issued. Nor was a renewed
consolidation
after the court whittled down the cases
necessary
the Konstantin plaintiffs
only. Further,
to his and Dummitt’s
argument
that we should not review the issue based on her
The Kon
claim that
the record is
is not
incomplete
persuasive.
stantin
should have moved to dismiss the
or to
appeal
event,
the record. She did neither.
In
deem
supplement
we
the record to be sufficient. The
is
question
u[ni]eaning
whether
ful
.
review . . has . . . been rendered
appellate
impossible”
(UBS
LLC,
Sec. LLC v Red
Zone
AD3d
[1st
2010], lv denied
Consolidation provides: question involving of law a common
“When actions upon pending court, court, before a or fact are joint may trial of or all the mat- motion, ters in order a may consolidated, issue, order the actions concerning pro- may other orders and make such unnecessary may ceedings tend to avoid therein as delay.” costs or joining together statutory language suggests, cases is
As the litigation, designed make more economi- “reduce the cost of speed disposition of time, court’s and cal use of the trial cases” (Matter [Brooklyn City Litig. Asbestos Nav. New York of Dept [1st Shipyard 1993], AD2d 225 82 Cases], 214, 188 affd [1993]). “great deference is to be accorded to Further, 821 NY2d the motion court’s discretion” (Matter together joining in cases Progressive [Vasquez Countrywide Co.], Ins. 10 Ins. Co. of — 2004]). Dept [1st 518, AD3d 519 (995 1993]) [2d Gypsum F2d
Malcolm v National Co. 346 Cir concerning case consolidation asbestos cases. is the seminal There, the Second Circuit endorsed guideline
“[a of] set criteria ... as a standard expo- determining whether to consolidate asbestos (1) (2) including]: cases[,] worksite; exposure; common sure similar (4) (3) occupation; similar time (5) plaintiffs living type disease; or whether were (6) (7) discovery in deceased; case; status of each plaintiffs represented whether all were the same (8) (995 alleged” type F2d at counsel; and of cancer quotation [internal and 350-351 omitted]). marks citations entertaining a consolidation motion is further The court required separate to take into consideration the number of cases (id. 352). applied the Malcolm factors to at This Court has (see City Litig., Matter New York Asbestos asbestos cases 2012]). [1st AD3d Not all of the factors need be long present; appropriate “individual is- consolidation is so as predominate questions do over the common of law and sues not (id.). However, cases, fact” in asbestos it has been “routine” to (see join together single e.g. Bischofsberger for a trial v cases Op [Sup Slip 32414[U], *2-3 Prods., A.O. Smith Water 2012 NY 2012]). County Ct, NY argument primarily the first five Malcolm
TLC’s concerns rejected Regarding two, the first some trial courts have factors. exposures on the locations specific focus a narrow that considers whether analysis of an two of work favor types in an related to “engaged occupation were more plaintiffs or [were] maintenance, repair ‘exposed inspection and/or is, by working way, directly in the “traditional” ” (see Matter New York e.g. City years’ for the material with Ct, 33941[U], *6 NY Litig., Op [Sup 2010 NY Asbestos Slip drywaller, residential Navy pip- cases of [joining 2010] County electrician, worker, renovator, powerhouse home efitter, plant trial, their injuries where “resulted Navy electrician *12 boilers, valves, and other pumps, from exposure ‘insulation ”]). types Other courts have focused on the insulated equipment’ were product plaintiffs exposed, of asbestos they manufactured and distributed whether were different (see 32414[U]). e.g. Bischofsberger, defendants 2012 NY Slip Op third respect factor, With whether two or more asbestos times of plaintiffs’ exposure common, were the focus is on evi- (see dence of the state of the art at Malcolm, time 995 F2d 351). In Malcolm, there was no commonality where exposures at among the plaintiffs began in the 1940s and ended in the 1970s, and some plaintiffs were exposed throughout that but period others were exposed much shorter periods within it. In considering fourth factor, type disease, trial courts have ruled inconsistently where different plaintiffs who propose joint trials have different types (compare Matter of mesothelioma New City York Asbestos Litig., 2012 NY Slip Op 32097[U], *20-21 Ct, [Sup NY County 2012] that [finding peritoneal mesothe- lioma ais “distinct disease from . . . pleural mesothelioma”], with Bischofsberger, 2012 NY 32414 Slip Op [U], *6 [pleural mesothelioma and peritoneal mesothelioma “are the same dis- ease, albeit they present in different parts body”]). In Malcolm factor, the fifth determining the effect of different plaintiffs’ (i.e., “statuses” or living dead), trial courts have looked to whether the defendants would be prejudiced by the presence of plaintiffs deceased in the case (compare Matter of New City York Asbestos Litig., 1109[A], Misc 3d 2009 NY Slip 57002[U], Op *3 Ct, NY [Sup County 2009] [declining join cases involving deceased plaintiffs with living plaintiffs who were not at risk of imminent death], with Matter New York City Asbestos Litig., Misc 3d 1063[A], 2006 NY Slip Op 50375[U], Ct, [Sup *3 NY County 2006] [observing that there terminally plaintiffs joining prejudice with deceased
was no ill plaintiffs]).1
Giving must,, and court, as we to the trial deference flexibly, applied considering to be factors are that the Malcolm properly the cases. We consolidated trial court find that the we recognize physical shipboard different room is a boiler that building that the construction, and under than a environment plaintiffs’ performed somewhat decedents was the two work Fundamentally, Konstantin and however, different. exposed manner, which was in a similar to asbestos were both presence by being released at of dust in the immediate they performing TLC has their work. time as were the same why differences in the environments failed to articulate exposure impact job manner of an on the duties had such exposure necessary heard to be for the evidence overlapping, again purely separately. not Further, while Significantly, sufficiently periods exposure both common. are meaning periods exposure plaintiffs’ ended decedents cases. dis art was the same for both We that the state of the types agree difference in the of mesothelioma TLC that the with compels separate plaintiffs’ trials. TLC can decedents had the point why suggesting in the record to no medical evidence *13 peritoneal types pleural and of me differences between sufficiently significant types of that to have both are sothelioma purpose present of in the same case thwarts the disease consolidation. appear in court does not too ill to
Further, that was upon him different “status” from Konstantin confer a proper. purposes There is no evi- of whether consolidation physical jury condition was was aware that his dence that trial, that it would have conflated dire at the time of so ill that of the less Konstantin. condition with argues above, TLC
In addition to the factors discussed plaintiff as because each that consolidation was unwarranted liability. theory It is true that the Konstan different of serted a § 200 claim for a violation of Labor Law tin asserted a complaint negligence, that the Dummitt and and common-law liability theory products traditional a claim under the asserted TLC’s Konstantin needed to establish of failure to warn. While factors, Malcolm state of dispute that the sixth and seventh 1. There is no separate attorneys, makes no discovery identity are satisfied here. TLC and factor, type al- concerning eighth involves the of cancer argument which leged. required control of the worksite, and Dummitt was strate that the defendants in his case breached a to demon-
duty to warn, ultimately required showing both theories that defendants reasonably permitting failed to act the men to become ex- posed predominates any asbestos. This common element over tangential elements inherent in the different theories. presented by plaintiffs
Because the claims
had more facts and
unique
issues in common
goals
than
to each, we find that the
claiming
consolidation were met here. TLC,
that
it was
prejudiced,
argues
plaintiffs’
still
motion should have been
successfully oppose
party
denied. To
consolidation, a
must dem
(Chinatown
prejudice
right”
onstrate
Apts.
to “a substantial
v
City
1984]).
Dept
[1st
New York
Auth.,
Tr.
AD2d
allegations
prejudice
specific
non-conclusory
must be
and
(see Champagne
Corp.,
[2d
v Consolidated R. R.
TLC’s that it was is based disjointed position nature of the trial. However, its solely joinder this was a result of claims of the two is inac presented curate. The reason witnesses were out order, most instances, was to accommodate the trial court’s hours of operations, prohibited continuing testimony past it from budgetary time, a certain expressly due to Indeed, constraints. the court multiple during stated that this was the case times apologized jury trial, for the inconvenience. Compounding problem juror repeatedly was one who ar proceedings, ultimately necessitating rived late for the his re panel moval from the in the middle of the trial. argument jury
The additional made TLC that speculative, especially confused the nature of the trial is light steps the court took to minimize unfairness. carefully appropriately provided nearly The court continu- limiting, explanatory ous and curative instructions, regularly particular testimony reminded the that a line of *14 (see applied plaintiff to one or the other v Cason Deutsche Bank 2013]). Group, Dept [1st imple- 106 AD3d The court also management any mented other devices to alleviate and limit potential juror providing jurors confusion, such as the with taking recording notebooks for notes, to assist them in and distinguishing jurors the evidence in each case. The were also provided plaintiff-specific interrogatories jury with sheets.
Ultimately, support the verdicts the conclusion that consolida- proper. jury understanding tion was demonstrated its liability imposed It 76% in the two cases. nuances the different liability in that the manufacturers on each of on TLC 8% liability assessing in the other. This Crane 99% case, while distinguish jury the evi- between able to the reflects that recognizing culpability of the presented case, in each dence joint compound case and the in the Konstantin manufacturers component part negligible culpability of the valve on jury awarded Further, case. in the Dummitt manufacturers suffering substantially pain awards, and assessed different plaintiff. expectancy Had the been each different life a not have been, it could it must have confused, as TLC asserts each consistent verdict for an individualized rendered presented specific to that with reference evidence with plaintiff. unduly find that TLC was not reasons, we For these prejudiced of the two cases. the consolidation argument, improperly adopt Finally, made TLC’s we decline to reply brief, that consolidation of in its for the first time policy longer compelling the “crisis” that because no a cases is crushing sick as number of workers became when a arose exposure This has diminished. to the substance result of their policy question purview decide, nor is it rel-
is not our within appropriate, provides for consolidation where The CPLR evant. or the matter concerns asbestos reference to whether without some other issue. challenges to the verdicts. to the substantive
We now turn
jury’s apportionment
li-
to it of 76%
that the
TLC maintains
ability
weight
against
It contends that
of the evidence.
bought, sold,
manufactured,
there was no evidence
joint compounds that Konstantin was
distributed, or used
present
exposed
to be
on the work site.
to, or even caused them
refuse TLC’s
error for the court to
further claims that it was
It
pad
jury’s
request
if
manufac-
verdict sheet ask
brake
specifically
Corporation,
had
Bendix
whom Konstantin
turer
exposed
it was a
asbestos,
him to
and whether
identified,
causing
factor in
his illness.
substantial
weight
only
against be
as
A
can
set aside
verdict
on
not have been reached based
the evidence where it could
(Berry Metropolitan Transp.
interpretation
v
of the evidence
fair
1998]).
Dept
[1st
Further, the burden of
Auth.,
evidence at trial showed that Dummitt was to numer- asbestos-containing products during Navy ous service and supplied there was no evidence that Crane made or those consequence, materials. Crane contends that as a there is no logical injuries. basis for to be held 99% liable for Dummitt’s Indeed, Crane asserts that the evidence showed that Dummitt exposed asbestos-containing materials associated with at least 32 different entities, and that none of those entities warned dangers exposure him of to asbestos. challenge
The verdict withstands Crane’s because, like any TLC, parties Crane adduced no evidence that of the other negligent failing were to warn Dummitt. Instead, Crane relies plaintiffs’ generally state-of-the-art witness, who testified historically public what was available domain about the dangers opining any party asbestos, without as to whether or nonparty dangers By knew of the of asbestos. contrast, Dum concerning general mitt offered evidence both Crane’s and its specific knowledge Moreover, asbestos. the al liability supported location of 99% to Crane was the evi dence. As discussed below, Crane was the main source of Dum exposure, through mitt’s its efforts to market asbestos as preferred insulation of choice for its valves.
It was also rational for the to conclude that TLC recklessly. Crane acted Konstantin adduced evidence that as TLC he at began working before years five early as the head officer and Endler, a TLC site, corporate James work *16 fibers that asbestos admitting a letter construction, issued of of those people to the health injurious to be proved “had been Accordingly, of time.” periods over prolonged to them exposed im- be “cleaned up dust should any directed that asbestos he track the on the floor would not working that men so mediately into fallout material inject additional material elsewhere Olympic a release for the 1973, press In TLC issued the air.” Konstantin site, one of the sites where construction Towers fire of a “non-asbestos its worked, advertising development from potential construction workers to help protect spray” had conclude, then, that TLC only hazards. One can health the of asbestos. dangers actual of knowledge did relate to asbestos- specifically these admissions not That that of no moment. TLC admitted is containing joint compound was used on its work sites asbestos joint compound it knew that TLC worked 1970s, and Konstantin adduced evidence the manufacturer, develop to joint compound a Gypsum, with U.S. the it was rational for Accordingly, asbestos-based product. an at least “obvious” to conclude that it should have been jury to it was joint compound “highly the use of by permitting TLC that (Matter New York City harm would follow” that probable Asbestos quotation [1997] [internal Litig., NY2d omitted]). marks Crane’s reckless showing
There also sufficient evidence asbestos.2 The evidence dem- by for the hazards disregard posed dangers about warnings that Crane had received onstrated trade associa- the 1930s from various early of asbestos as as by admitted it knew of tions, and Crane 1970s. early that as a manufacturer argument Crane makes the separate asbestos- valves, duty it had no legal pertaining manufactured and sold others. containing components valve that it should find that, against It claims by charging that later Navy if it was “foreseeable” would merely asbestos, the court ignored made with well components replace can be held liable for only that manufacturers precedent settled Ac- in the stream of commerce. they place defective products plead recklessness. reject that Dummitt did not 2. We Crane’s contention “recklessness,” allega- complaint Dummitt’s did not use word While support unquestionably tions the claim. Crane, touchstone for this Rastelli cording is proposition (79 v Tire & Rubber Co. [1992]). Goodyear NY2d 289 Rastelli, In the Court of declined Appeals to impose liability defendant, manufacturer, a tire when a rim that Goodyear did not manufacture that was attached a third af- party ter the tire entered the stream of commerce exploded. Court stated that “[u]nder case,” circumstances of this manufacturer had no duty warn “about another manufactur- er’s when the first product manufacturer produces a sound which is product compatible use with a defective product (79 297-298). the other manufacturer” NY2d at The Court noted had “no Goodyear control over the production subject rim, had no role in multipiece rim in placing (id. commerce, stream of and derived no benefit from its sale” *17 298). at The Court further noted that Goodyear’s tire “did not create the defect in rim alleged that caused the rim to (id.). explode” that Rastelli was extended to the asbestos
Crane contends
in Matter
Jud.
(92
context
Eighth
Dist. Asbestos
Litig.
AD3d
of
lv denied
2012],
[4th
Dept
exposure” citing It further stated: materials that could was one of several
“Asbestos products. Crane While have been used insulate might Pacific boil- have made its installation on this Crane, there is no evidence ers foreseeable to any choosing type played role in of insula- place applied. [the plaintiff] into Crane did not tion [the to which of commerce the asbestos the stream plaintiff] exposed, and there is no evidence that (id.). any production” over its Crane had control (200 Bally Finally, AD2d Tortoriello v Case Crane cites 1994]). slipped [1st and fell on the There, the quarry freezer. She asserted a strict tile floor of a walk-in against products liability freezer, the manufacturer of the claim although claiming defective, the manufacturer that the floor was ship it with the floor installed and had no of the freezer did not type knowledge of the of floor installed. This Court held that quarry in its literature of tile as the manufacturer’s inclusion materials for freezers was one of three available floor walk-in liability, to establish since there was “no evidence insufficient anything [the manufacturer] had to do with the actual flooring general made the architect and contractor” choice (200 477). AD2d at together cases, Crane,
These and others cited stand proposition rather unremarkable that where there is no evi role, interest, had or influ dence that a manufacturer active types products ence in the to be used connection with its *18 product placed product after it its into the stream of com own duty merce, it no to The cited the Dummitt has warn. cases plaintiff, however, demonstrate that where a manufacturer does sufficiently significant role, interest, a or influence in the have component product type of after it the used with its enters may strictly if commerce, stream of it be held liable injury component product. causes to an end user of the For (288 example, Dept [1st S., in v A.C. & Inc. AD2d 148 Berkowitz 2001]), summary judgment affirmed the this Court denial of to pumps Navy ships, although plaintiff a manufacturer of on the necessarily the manufacturer did conceded not install pumps. According decision, asbestos on the to the may technically pumps it be true that its “While insulation, could run defendants’ without own wit- government provided the certain ness indicated that involving specifications insulation, and it at is least questionable pumps transporting whether steam operated could be ship a board liquids hot defendant] [the insulation, without safely (288 at AD2d of asbestos” out made be would knew 149). Sears, Roebuck v on Rogers relies also 2000]). plaintiffs In Rogers, (268 [1st AD2d Co.& at- them was of that one tank propane a when injured
were manufactured grill barbecue attach tempting place did not defendant Although exploded. defendant the denial affirmed Court commerce, this of the stream tank be used not could grill “its since summary judgment, of 246). (268 at AD2d tank” without Berkowitz at issue to those much closer are here The facts and Tor- Surre Rastelli, Drabczyk, are to they than Rogers there suf- cases, case, in this as two In the former toriello. directly injurious the manufacturer to tie ficient evidence time, that, it cannot in the agent. At the same be said as latter cases, to the types of components set Crane was indifferent that would be used. To the contrary, evidence demonstrates that Crane influenced the Navy’s choice of valve components following the initial shipment, and played leading role in creat- ing the culture and regulations that encouraged and eventually mandated the use of asbestos for insulation. First, helped write the Navy’s manual for machinery “Naval Machinery,” which specifically directed the use of asbestos for boiler-room component Second, insulation. Crane provided the Navy with detailed drawings specifying components to use with each valve, to create a level of “standardization” so that the Navy would know which replacement component parts would be used with each valve. Many the specifications type valves on which Dummitt worked contemplated the use of asbestos. Lastly, while it did not manufacture asbestos-laden components, Crane took certain asbestos-laden components that had been manufactured aby third party, re- branded them as “Granite,” and sold them as its own product. Indeed, the record is replete with examples Crane, in its catalogs, extolling the virtues of and, Cranite by extension, *19 asbestos-laden insulation products as the industry standard, from 1938 to at least 1962.
These facts collectively “strengthen
the connection” between
Crane’s valves and the asbestos-containing
components
(see
made
Dummitt
sick
Surre,
Crane that the use of the word jury charge prejudicial very that, so to it at the least, a necessary. disagree. place trial new is We There is a for the no foreseeability tion failure to where, here, warn cases as product purposely promotes manufacturer of an otherwise safe product components the use of that with manufactured oth foreseeability ers that it knows not to be safe. To sure, be mere (see Supp duty [“a not Surre, is sufficient F831 2d at 802 against party’s product warn of a third does not alone”]). foreseeability explains why arise from This liability manufacturer was absolved of Rastelli, where it was type not concerned with what of rims would be used with its However, tires. this case is not even close to Rastelli because of components Crane’s demonstrated interest in the use of asbestos Accordingly, charge given potential with its valves. as had no wrong jury. to communicate the standard to the reject argument We Crane’s further based on the component parts doctrine.
“[W]here component part produces manufacturer product design, plans a specifications in accordance with the buyer design, plans
of the
and such
specifications
danger
do not reveal
inherent
component part
in either the
or the
unit,
assembled
component part
manufacturer will be held
injury
buyer’s employee
blameless for an
in a
products liability
(Leahy
strict
action”
v Mid-West
Conveyor
[3d
Co., AD2d
1986], lv
added]).
[1987] [emphasis
denied
Further, we permit prejudiced to Admiral Sar- trial court’s refusal the Navy permitted testify gent have about whether the would to proof warnings. that, had made an offer of had testify nameplates Sargent about the been allowed Admiral Navy, sold to the he would have stated that to valves attached provided specification an exhaustive list of items to be warnings included, and that the exclusion of hazard from the Navy list meant that the had determined that it was not to be substantially in However, included. a case with facts, similar (see rejected theory Second Circuit such a In re Joint E. & S. Litig., [2d 1990] [hereinaf- Dist. N.Y.Asbestos 897 F2d 626 Cir Grispo]). Brooklyn In case, ter Navy men who had worked at the during exposed
Yard World War II had been to asbestos. Navy specifications packaging The had issued detailed for the in asbestos-containing product shipped, which the had been labeling packaging. for the on the here, Like Crane the contrac- argued packaging, packing, labeling tor that “the relevant specification precluded for its asbestos-based cement . . . (897 633).3 furnishing product warnings” F2d at rejected position, finding specifica Second Circuit this that the shipping tion, which stated that containers were to be “marked type, quantity the name material, with and the therein, contained . contractor, . . the name of the the number (id. 627) gross weight” order, of the contract or and the at merely created a “floor” for the information the contractor had (id. 633). provide “[j]ust nothing at It found that as specification product warnings, nothing relevant discusses argument 3. The part “[government contractor’s of a contractor Supreme recognized Boyle defense” that the United States Court v United (487 [1988]). Technologies Corp. displaces US The defense state law (1) products liability approved reasonably claims “when the United States (2) precise specifications; equipment specifications; conformed to those (3) supplier warned the United States about the in the use of equipment supplier that were known to the but not to the United States” (id. 512). government at Crane raised the contractor defense but below does pursue appeal. Nevertheless, not logic Grispo it on holds for Crane’s proximate argument, properly cause which the trial court found a mere “recasting]” government of its contractor defense. specification purports place upon a limit additional may convey a manufacturer information have wished to to those (id. 633). using product” at specification
The record does not include the valve that was Sargent during testimony, shown to Admiral and that he set *21 required placed forth information that was to be on a nameplate. specifications However, the record does contain for parts, requirements nameplates. other which have similar for example, specification deaerating For a for feed tanks4 states (a) “[n]ameplates following: that shall include the Manufactur- (b) (c) agency name; number; er’s Government contract Bureau (d) (e) space manufacture; stock number . . . Date of Blank for (f) inspector’s stamp; space ship’s Government blank for identifying specification number.” This is similar to the one in Grispo, Grispo, nothing and, as the court found in therein even remotely suggests Navy precluding that the was other relevant including warnings, may information, that the contractor have Accordingly, persuaded desired to add. we are not that it would permitted have made a difference had the Admiral been to testify nameplate requirements that the for valves was exhaus- tive.
Finally,
attempted
Crane offered no evidence that it ever
to
Navy
products
exposure
warn the
that its
carried the risk of
Supreme
Boyle explained
asbestos. The
Court in
that this ele-
government
ment of the
contractor defense
necessary
displace
because,
absence,
“is
in its
ment of state tort law would create some incentive
knowledge
for the manufacturer
to withhold
of
conveying
knowledge might disrupt
risks, since
that
withholding
produce
the contract but
it would
li
no
ability.
adopt
provision
We
this
lest our effort to
protect discretionary
perversely impede
functions
by cutting
highly
them
off information
relevant to
discretionary
(Boyle,
decision”
Finally, apple- onset 2008 with late suffering and pain mesothe caused which was testes, in his hydrocele sized suffering and pain past of 33 months Accordingly, lioma. and suffer pain past award calculated. accurately within month, plainly $136,000 per equates million ing $4.5 Moreover, Kon is accurate. argues TLC even what range chemotherapy, rounds two surgeries, five endured stantin testified Konstantin radiation. broad-ranged round one and uncomfort sore” “very his testicle swelling of an size eventually recurrent, swelling also It was able. to remove surgery, the first underwent he Eventually, avocado. scrotum, he claimed caused of his part his testicle and which he described as “10 pain swelling” “extreme out of 10” on the *22 scale. The pain asbestos then to his migrated pleura, requiring procedures to drain the fluid in his chest cav ity. In addition, the scar from his testicle removal did not heal properly, requiring additional surgery, the pain of which the Konstantin plaintiff described as “unbearable.” The jury’s award of $3.5 million for 18 months of future pain and suffer ing, which Konstantin concedes is unprecedented, is supported fact that, until the end of his life, he suffered two me sotheliomas, in his testes and chest, tantamount to twice as much pain and suffering.
We also find that the award of damages to Dummitt justi- fied. The award is clearly supported by the evidence pain and suffering Dummitt endured over a 27-month period begin- ning at the age of 66. This included “thoracentesis” procedures to drain the fluid and relieve the pressure in his lungs, a complete lung collapse, thoracic surgery, and three rounds of chemotherapy. In addition, the remittitur pain future suffering to million $2.5 was appropriate under the circum- stances.
Accordingly, the judgment of the Supreme Court, New York (Joan County A. Madden, J.), entered November 28, 2012, after a jury trial, plaintiff awarding E. Ruby Konstantin damages, and the judgment of the same Justice, court and entered 26, October 2012, after jury trial, plaintiff awarding Kay Doris Dummitt damages, should be affirmed, without costs. The ap- peal from order, same court and Justice, entered 4, October 2012, which denied defendant Crane Co.’s posttrial motion to verdict, dismissed, costs, set aside the should be without as appeal judgment. in subsumed from the October (dissenting part). appeals J. in Before us are Friedman, judgments plaintiffs for in two unrelated asbestos-related personal injury actions that were consolidated for trial Supreme County. majority Court, New York affirms each judgment. I concur in the affirmance of Konstantin v 630 Third (index 11498), appeal although, Ave. Assoc. 190134/10, No. No. provided upon because we have not been with the record the motion for decided, consolidation was I would not consider (Tishman argument by appealing Liquidating defendant Corporation) the two actions should not have been Upon appeal, consolidated. the other Dummitt v A.W.Chesterton (index appeal 11499-11500), respectfully No. 190196/10, Nos. I judgment plaintiff dissent from the affirmance of the for because (1) excluding the trial court erred certain evidence offered (Crane Co.) appealing defendant on the issue of causation (2) charge Accordingly, its on that issue. I judgment would reverse the in Dummitt and order a new trial on the issues of whether Crane’s failure to issue warnings danger asbestos-containing gaskets, pack about the ing, proximate and insulation used with its valves was a cause injury by plaintiff’s suffered and, decedent if so, what percentage of fault is attributable to Crane.
I turn first to agree Konstantin. While I am in substantial majority’s ment with the resolution of the substantive issues appeal, raised on challenge this I would not address Tishman’s Supreme pretrial consolidating Court’s order Konstantin and *23 Dummitt for trial.1 The consolidation order would be reviewable upon (see appeal judgment Tishman’s from the final CPLR 5501 [1]) [a] upon if the record which that order was made were provided before any Tishman, us. however, has not us with papers upon the which the consolidation order was made. Al though prosecuted appeal by appendix system has its the au (a) (5) by (a), thorized CPLR 5528 and 22 NYCRR 600.5 Tish original man has neither caused the record of the consolidation by motion to be Supreme transmitted to this Court the clerk of (a) required by (1), Court, as 22 NYCRR 600.5 nor included the reproduced record appendix of that motion in the it has filed (a) (5). pursuant with this Court to CPLR 5528 All we have before us is the consolidation order itself. Tishman’s failure to Crane, appellant 1. Dummitt, in challenge does not the consolidation appeal, order although on oppose it did Supreme consolidation in Court.
257
any
papers
place
Court,
form,
in
of the
before this
or
sup
motion,
consolidation
either in
submitted on the
in
exhibits
required by
opposition,
port
5526,
as
CPLR
renders
or
[granting]
££[m]eaningfulappellate
of the
of that motion
review
(UBS
impossible”
LLC,
LLC v Red Zone
77 AD3d
.
Sec.
. .
[2011]).
Dept
[1st
2010],
The was asked to determine whether Crane had breached duty working danger to warn those with its about valves gaskets, packing, of asbestos in the conjunction and insulation used in regard, pro- with the valves. In this the court pounded following jury, objec- instruction to the over Crane’s “[A] duty tion: manufacturer’s to warn extends to known dangers or which should have been known exercise of reasonable care of the uses of the manufacturer’s product product with the of another manufacturer if such use reasonably foreseeable.” foregoing majority ap- erroneous, instruction was as pears recognize, say I but think we should so more forth- rightly. precedent duty Under Court, this a firm’s to warn dangers arising products about it neither manufac- tured nor distributed, sold nor but which could be used in conjunction products with that the firm did manufacture, sell, products distribute, or does not extend to all such uses of other might “reasonably example, be foreseeable.” For in Torto- (200 Bally 1994]), [1st riello v Case AD2d 475 we held that majority 3. While the notes that Crane did distribute sell an asbestos- containing “Cranite,” material known as which was manufactured other companies, stipulated it was allege at trial that [that] “Mr. Dummitt does not exposed he was products.” to asbestos from Cranite
259 duty freezer had no to warn manufacturer of a walk-in us- by danger posed quarry flooring, slipping tile ers in others, and sold that could be used manufactured notwithstanding flooring depicted that this kind of freezer, manufacturer’s sales literature as “one of three in the freezer (id. 477). materials for walk-in freezers” at In available floor reasonably plainly literature, that sales foresee- view of quarry flooring the manufacturer in Tortoriello that tile able to yet freezers, be used in its walk-in we would sometimes duty manufacturer had no to warn users of the held that the flooring. of that kind of freezers about the hazards scope on the of The error in the court’s instruction Crane’s duty however, harmless, inasmuch as “there is no was, to warn appellant pre- could have of the evidence under which view (Marine Co., Midland Bank v Russo Produce 50 NY2d vailed” [1980]) duty a to on the issue of whether Crane had warn 31, 43 question danger working people with the valves packing, exposure gaskets, and insulation used in from asbestos conjunction This is because the record with those valves. dispute use indeed, itself does not establishes — —that conjunction asbestos-containing perishable with materials merely certainty, not “reason- certain of its valves was a known Navy, emphasizes ably Crane, not that the foreseeable.” Crane gaskets, packing, it would use on and insulation chose which non-asbestos-containing points valves, to evidence that used these items available and sometimes versions of were Navy during period question. Nonetheless, the evi- Navy very well, knew that, dence uncontroverted as Crane is asbestos-containing components specifications be dictated that many Dummitt which Mr. used with of the Crane valves with previous a manufacturer case, In we held that worked. a summary judgment Navy ships pumps was not entitled on notwithstanding against dismissing it, a failure-to-warn claim asbestos-containing that it did not manufacture or install pumps, raised as an issue of fact was insulation on its because [that be the insulation to the manufacturer “knew to whether pumps] made out of asbestos” would be installed on (Berkowitz [1st 2001]; S., 148, 149 Inc., & 288 AD2d v A.C. [1st Rogers Sears, AD2d Co., v Roebuck & see also duty give grill [the Dept 2000] users had a manufacturer of a arising adequate warnings the use of about the tank, which it did not propane sell, manufacture or “where its tank”]).4 grill could not be used without the Dummitt I Although believe that entitled, is record, this on the issue of I prevail duty, believe that errors to the issue of relating cause us to proximate require reverse the and order a judgment new trial as to causation- First, related issues. over Crane’s objection, trial court’s *26 charge jury to the on the issue of proximate cause erroneously included the following instruction: “Mr. Dummitt is entitled to the that had presumption proper adequate warnings been given the use of the regarding the product, warnings would have been heeded and injury avoided.” This charge is contrary precedent to of this that, Court holding a failure-to-warn case, the plaintiff has the burden of proving “that the user of a product would have read and heeded a had one been warning (Sosna v American Home Prods., given” 158, 298 AD2d 158 [1st 2002]). Further, to the extent certain federal court deci- sions purporting to apply New York law have applied such a presumption (contrary to this Court’s precedent), that presump- (see Santoro ex rel. Santoro v tion is rebuttable Donnelly, 340 F 464, 2d 2004]), Supp [SD NY which is not the the charge jury was initially given. While the court subsequently attempted to cure its error by adding that the presumption could be rebut- ted,5 it that, remains the case regardless of what some trial courts and federal courts York applying held, New law have may this Court has never held such a presumption, whether rebutt- able not, or to in a apply personal injury case based on a failure- to-warn theory. Further, since the erroneous presumption charge was part instructions the jury actually received, to prejudicial Crane whether or not counsel for the Dum- By contrast, 4. against in an asbestos case Crane which the United States District Court determined that the record supported would not have a finding that Crane Navy knew for certain that place would asbestos- containing boilers, granted insulation on its summary the court judg- Crane dismissing ment claim, distinguishing failure-to-warn our decision in ground Berkowitz on the that the latter case pos- “involved more than a mere (Surre sibility that might asbestos LLC, be used” v Supp Foster Wheeler F831 2011]). 2d [SD NY charge, 5. After the initial jury the court called back the and added the fol- lowing concerning “clarification” presumption jury had been instructed plaintiffs “This, however, to entertain in favor: is a rebuttable presumption. words, you In other can consider other evidence in the case to see if that other presumption evidence rebuts this to which Mr. Dummitt is entitled.” charge requested express refer- mitt —made —who jury.6 argument to ence to it charge error in the on causation can that the I do not believe by subsequent been cured the court’s deemed to have be presumption had been “clarification” indulge plaintiffs was re- in the favor instructed to presumption charge not, or rebuttable buttable. Whether shifting proof the burden of on the causation the effect of had contrary precedent by of this Court which the and was issue possible However, even if it were to deem trial court was bound. by to have been rendered harmless the erroneous instruction compounded by instruction, the trial court its error curative the improperly Sargent, precluding Admiral David U.S.N. Rear testify (ret.), expert as an on naval who was called Crane testimony ques- giving highly operations, relevant warnings give Crane’s failure tion whether proximate injuries. Specifically, of Mr. Dummitt’s cause testimony Sargent’s sought through Admiral how to show attempt Navy to an Crane to issue warn- have reacted would ings This wit- asbestos used its valves. about the *27 Navy testify prepared have forbid- that the would ness was they warnings place on its valves because den Crane to Navy equipment specifications. Al- contained in the were not though hy- testimony that the have tended to show this would warnings, given, pothetical Mr. not have reached even if would jury it. the to hear Dummitt, court refused to allow the majority’s that the statement the I do not take issue with presented would that Mr. Dummitt evidence clearly warning that . . . testified . . . and received have “[a]ny steps protect warnings and taken heeded those he would have proof present himself.” its own entitled Still, Crane was presumption rebutting that the evidence, as as the this well (101 [1st 6. Union Carbide AD3d 434 Corp. FM Ins. Co. v Affiliated 2012]) point. Carbide was this Union change Department’s this law on did not coverage sought to avoid coverage dispute, in the insurer an insurance ground the against policyholder on bodily injury claims for asbestos-related injuries giving to the rise “expected intended” the policyholder or that 434). (id. appeal, we noted that rejecting the insurer’s In claims at intent, that it “offered, proof lack of evidence as further policyholder asbestos, guid- as as well regarding the provided information . . . customers,” after potential proper usage, to its clients and concerning its ance presumes that law proposition that “New York for the which we cited Santoro (id.). In the context of product” a warnings provided with will heed users Carbide, Santoro citation of in that decision’s that us Union issue was before holding plainly dicta. and recitation of the Santoro jury erroneously indulge had been instructed to in the Dummitt plaintiffs favor. Given that the excluded evidence was relevant preclusion material, its constituted reversible error. majority mistakenly nearly quarter-century- relies on a old federal court decision—which neither side has cited on this appeal support preclusion of its view that the trial court’s —in Sargent’s testimony of Admiral did not constitute reversible er- (897 Litig. In fact, ror. In re Joint E. & S. Dist. N.Y.Asbestos [2d 1990] [hereinafter Grispo]) provides F2d support Cir no preclusion Sargent’s testimony either for the of Admiral or for majority’s inappropriate groundless speculation that expert testimony [no] this witness’s “would have made differ- jury ence” to the outcome of the trial had the been allowed to Grispo, hear it. In while the Second Circuit affirmed the denial summary judgment to the defendant cement manufacturer (Eagle-Picher) military on its contractor defense, affirmative grant summary judgment also dismissing plaintiffs vacated the that defense and remanded for reconsideration the District Court of whether certain evidence in the record genuine “establish[ed] [whether] issue of material fact might precluded Eagle-Picher including Government have (id. 637). any product warnings” at At the trial of the Dummitt effectively granted case, on the other hand, the court plaintiff summary judgment on the issue of causation refus ing Sargent’s expert to allow testimony, to hear Admiral knowledge Navy’s practices based on during the rele period, any warnings by vant Crane about the use of asbestos-containing conjunction materials with its valves Nothing would Grispo not have sup reached Mr. Dummitt. ports preclusion testimony, of this since there is no indica opinion Eagle-Picher tion in the Second Circuit’s offered expert testimony Sargent support similar to that of Admiral military of its Grispo contractor Thus, defense. while court *28 unpersuaded by documentary Eagle the raw evidence (see support Picher 632-633), offered in of the defense id. at had expert testimony no occasion to consider whether about military practices, sought present such as Crane to Manifestly, here, Sargent’s would raise an issue of fact. Admiral testimony portion is not even mentioned in the of the —which plaintiffs appellate addressing brief the causation is by sue—raised such an issue and should have been heard jury. nothing Grispo suggests There is that otherwise. majority apparently position
The also takes the that Crane’s present failure Navy to evidence that it warned about the should with its valves used materials dangers of asbestos provide contesting such failure to that its preclude Crane proximate harm cause personnel a warnings naval to majority joins dubious in its if one Even Dummitt. Mr. to vendors) (unlike product was in Navy its assumption pe- during the relevant dark about Sargent would Admiral majority is overlooks riod, what procure- experience long in naval on testified, based have sought provide such had if Crane practice, that, even ment warnings, Stated them. Navy disallowed have would Sargent, according have would Navy, to Admiral otherwise, the by warnings presented trans- unmoved been jury might well The Mr. Dummitt. like to servicemen mission point, testimony Sargent’s rejected this but Admiral have preclusion right present of this it to them. Crane had (the expert testimony admissibility of which the Dummitt plaintiff dispute) does not constituted reversible error. Finally, given my view required that a new trial is on the question of whether give Crane’s failure warnings was a substantial factor causing Mr. injuries, Dummitt’s I would direct that, should the causation issue be resolved in the Dum- plaintiff’s mitt favor, the issue of percentage Crane’s of fault for the harm suffered and her decedent be deter- mined afresh at the new trial.
Richter and Manzanet-Daniels, JJ., concur with Mazza- J.R; Friedman, relli, J., dissents in part in a separate opinion in which DeGrasse, J., concurs. Judgments, Supreme Court, County, New York entered November 28, 2012, and October 26, 2012, affirmed, without Appeal costs. from order, same court, entered October 4, 2012, dismissed, without costs, as subsumed appeal in from the October judgment.