September 18, 2018
On September 13, 2018, the First Department of the Appellate Division released its decision in the Thomas McGlynn matter. The case was tried to verdict in August of 2017; the law firm of Simmons Hanly Conroy represented Mr. McGlynn, a living seventy-five year old mesothelioma claimant, against the sole remaining defendant at trial, Jenkins Brothers (“Jenkins”). Plaintiff alleged exposure to asbestos aboard various marine vessels from 1976 to 2002; he identified twenty-nine entities as contributing to his exposure to asbestos throughout the course of his deposition. Justice Martin Shulman presided over the trial. The jury awarded Mr. McGlynn $1,800,000 for twenty-eight months of past pain and suffering, and $1,500,000 for six months to one year of future pain and suffering. Jenkins was found 15% liable and reckless; the five other entities appearing on the verdict sheet, Farrell Lines (35%), Holland America (35%), Cleaver Brooks (5%), Foster Wheeler (5%), and General Electric (5%), absorbed the remainder of the verdict.
Saliently, plaintiffs moved for additur in their post-trial application to Justice Shulman; same was granted and plaintiffs’ past pain and suffering award was increased to $4,000,000 (from $1,800,000), and the future pain and suffering award was increased to $2,500,000 (from $1,500,000).
Decision
Jenkins appealed the additur decision, as well as various other aspects of the jury’s verdict. First, Jenkins challenged the court’s ruling that it could not question plaintiffs’ causation expert, Dr. Moline, concerning other implicated entities’ (non party tortfeasors) role in the causation of plaintiff’s mesothelioma. That is, Justice Shulman had ruled that Jenkins could not use Dr. Moline to discuss the harmful effects of other entities’ packing and gaskets products, when Jenkins’ own experts had testified that packing and gaskets could not have caused plaintiff’s disease. The First Department glossed over this argument, but affirmed the principle of Justice Shulman’s decision in so holding that Jenkins had failed to establish causation as to those other nonparty tortfeasors.
Jenkins further challenged Justice Shulman as to the entities included on the verdict sheet—of which there were only six, as compared with the twenty-nine identified by plaintiff. Jenkins argued that General Obligations Law § 15-108, which discusses the effect of settlement of other tortfeasors, mandates that all settled parties appear on the verdict sheet, regardless of whether any evidence of their culpability is presented at trial. The Appellate Division disagreed, and held that a prima facie case must be presented as to all culpable entities, settled or not, in order for same to appear on the verdict sheet.
The court also considered Jenkins’ argument that the court had committed error in prohibiting Jenkins from presenting evidence concerning Mr. McGlynn’s alleged exposure in Scotland, at various shipyards, despite testimony from Mr. McGlynn that he was not exposed to asbestos in Scotland. Justice Shulman had ruled, post-trial, that the evidence was anecdotal at best and any perceived error in prohibiting the introduction of evidence was not a sufficient basis to set aside the verdict; the First Department agreed and determined that this evidence would have been speculative in nature.
Jenkins further argued that the court’s quashing of various trial subpoenas to settled defendants, in order for Jenkins to properly put on its Article 16 case and prove up culpability of other entities, was error and resulted in a higher apportionment of liability to Jenkins at the time of verdict. Justice Shulman had held that the subpoenas were either improperly served, or served upon non-New York entities, over which the court had no jurisdiction. The First Department, in examining the issue as it concerned Crane, found that the subpoena was properly quashed due to improper service. As to Warren Pumps, the First Department strangely held that Justice Shulman’s finding that the subpoena was improperly served was harmless—suggesting that his holding of improper service was incorrect, but was nonetheless harmless.
As to the issue of recklessness, Jenkins argued that such a charge was inapplicable given the state-of-the-art as to asbestos and its dangers during the applicable time period. However, the First Department found that Mr. McGlynn had alleged exposure to asbestos to Jenkins valves through 1986, well into a time period in which companies, and the general public, was aware of the hazards of asbestos.
Finally, as to the issue of damages, plaintiffs’ additur was affirmed in part, and reversed in part. That is, the past pain and suffering increase from $1,800,000 to $4,000,000 was affirmed, while the future pain and suffering was remitted from $2,500,000 to the original award of $1,500,000.
Analysis
This decision has both positive and negative implications. In terms of damages, the court departed from its implicit $250,000/month rubric as applied in the recent remittitur decisions before the First Department: Peraica, Sweberg, and Hackshaw. That is, $4,000,000 for twenty-eight months of past pain and suffering equals out to $142,857 per month, more than $100,000 per month less than what was considered to be threshold valuation for mesothelioma claims in the NYCAL. While the future pain and suffering award of $1,500,000 for six to twelve months would equal out to $125,000 to $250,000, it is certainly a relief that the First Department does not look at a $250,000 valuation per month as gospel for mesothelioma matters. This will provide the defense bar much more leverage in future negotiations with the plaintiffs’ bar moving forward and will change valuation for matters in NYCAL as a whole.
The First Department’s dismissal regarding the quashing of the Warren subpoena as harmless seems anything but. The court seems to concede the subpoena was properly served, which may have resulted in another entity on the verdict sheet had Warren testified, which, perhaps, would have significantly morphed the liability apportionment—certainly more than harmless error. Further, while case law may have suggested that General Obligations Law § 15-108 did not mandate inclusion of all settled entities on the verdict sheet, the court’s ruling that a prima facie case be put on against all Article 16 entities essentially reaffirms the reality under New York law: defendants’ evidentiary burden at trial is much greater than that of plaintiffs’. This decision only further highlights the need for additional Article 16 relief for defendants at trial, given the uneven ground upon which plaintiffs and defendants stand.