On June 28, 2019, the First Department of the Appellate Division released its decision on the appeals brought by A.O. Smith, Peerless, and Burnham in the Pietro Macaluso matter. The case was tried to verdict on April 13, 2018 before Justice Mendez. The case involved a deceased fifty-seven year old mesothelioma claimant with approximately one year of past pain and suffering. Decedent’s estate was represented by Simmons Hanly Conroy; the case was tried against three above appellants.
Decedent’s estate was awarded $25,000,000 for past pain and suffering, $17,000,000 to his minor son (nine years old at time of verdict) for loss of parental guidance, and $18,000,000 to his daughter (nine years old at time of verdict), who has special needs—for a total verdict of $60,000,000. Justice Mendez remitted the pain and suffering award from $25,000,000 to $10,000,000, the award to the decedent’s son from $17,000,000 to $9,000,000, and the award to the decedent’s daughter from $18,000,000 to $10,000,000, for a total remitted award of $29,000,000. In short, the First Department further reduced the past pain and suffering award from $10,000,000 to $4,000,000, and remitted each of the parental guidance awards to $1,000,000 each, for a total verdict of $6,000,000. All other grounds for the appeal were denied.
Without much analysis whatsoever, the court summarily dismissed appellants’ arguments concerning causation, omitted entities on the verdict sheet, liability for third-party component parts, and recklessness. Perhaps the most important point to glean from the court’s thing analysis is the continued stress the First Department, and NYCAL judges, have placed on the need for defendants to establish a proper case against all entities they intend to place on the verdict sheet.
As to remittitur, the court acknowledged that while the reduced award of $4,000,000 for approximately twelve months of past pain and suffering (equaling to $333,333 per month) is significant and exceeds some prior precedent, the panel explained that such an award is supported by the specific facts of this case. This echoes the precedent of Sweberg, Hackshaw, and Peraica trilogy of cases, in which the court indicated that pain and suffering awards are solely dictated by the record, not a pre-determined monthly calculation. While the court indicated that the loss of parental guidance awards were excessive, and thus dramatically reduced to $1,000,000 per child, the panel did not expound further.