March 21, 2014
On Tuesday March 18th jury verdicts were rendered in the Harry Brown and Patrick McCloskey matters. These cases were venued in the New York County Asbestos Litigation ("NYCAL"). McGivney & Kluger client Mario & DiBono was defended by M&K Partner Marvin Blakely and Jeffrey Feegan of Cullen & Dykman.
The jury in these cases awarded Brown's estate $2.5 million for past pain and suffering and $1 million for loss of consortium-a total of $3.5 million. Mario & DiBono was levied 0% liability. Despite the fact that our client was found negligent and caused plaintiff to be exposed to asbestos, Mario & DiBono was not held to be a substantial contributing factor in plaintiff's injuries. As to McCloskey, the jury awarded his estate $4 million for past pain and suffering and $2 million for loss of consortium-a total of $6 million. Mario & DiBono was found to be reckless and was assigned 25% of the verdict.
These cases were part of Weitz & Luxenberg's April 2013 In Extremis trial cluster. Both matters were tried jointly before Justice Jaffe. Plaintiffs were represented by Dan Craft, Michael Fanelli, and Phan Alvarado of Weitz & Luxenberg. Jury selection commenced the first week of November 2013. Parties began their closing statements on Friday, March 7th and the jury was charged on March 10th.
Con Edison, sued due to their ownership of numerous powerhouses, The Port Authority, Tishman, and Mario & DiBono were the only remaining defendants in both matters. The Brown matter involved a deceased seventy-four (74) year old mesothelioma claimant with approximately fifteen (15) months of pain and suffering. Mr. Brown alleged exposure to asbestos during his career as an insulator at various construction and powerhouse sites throughout the New York metropolitan area. At his discovery deposition, plaintiff identified twenty-two (22) entities that contributed to his exposure to asbestos. The McCloskey matter involved a deceased sixty-nine (69) year old mesothelioma plaintiff with sixteen (16) months of pain and suffering. Akin to Mr. Brown, Mr. McCloskey alleged exposure to asbestos throughout his career as a steamfitter; he identified forty-six (46) potentially culpable entities at his discovery deposition.
The central work site litigated by plaintiffs' counsel in both matters was the initial construction of the World Trade Center, which was owned by the Port Authority. Tishman served as the general contractor/construction agent and Mario & DiBono was the primary fireproofing contractor at this location. The use of asbestos at this site, especially spray fireproofing, was the subject of numerous reports in the print and television media. The product was ultimately banned by New York City's EPA in the Spring of 1970, after thirty-four (34) citations were issued to seven (7) sites using asbestos-containing spray fireproofing to construct skyscrapers in Manhattan. The World Trade Center received three (3) of these citations.
Overall, we believe these verdicts are a welcome departure from the inflated NYCAL verdicts in recent years. Just one year ago, a NYCAL jury awarded a deceased mesothelioma claimant $35 million in the Peraica matter. Accordingly verdicts of $3.5 million and $6 million are very favorable for the NYCAL defense bar. This is further amplified by: 1) the fact that these verdicts will be significantly reduced after all set offs are calculated; and 2) Mario & DiBono received a No-Cause award in the Brown matter. It is our hope that these cases will not only pave the way for lower verdicts in future trials, but also serve to drive down settlement demands from the various plaintiffs' counsel in the NYCAL as well.
Please do not hesitate to contact M&K Partner Kerryann Cook should you have any questions.