New York County Court Sets Aside $19 Million Verdict

In Konstantin v. 630 Third Avenue Associates a New York County Supreme Court Justice recently held that a jury’s $19 million award deviates materially from what would be reasonable compensation. The Justice vacated the award and ordered a new trial on the issue of damages unless plaintiff agreed to reduce the awards to $4.5 million for past pain and suffering and $3.5 million for future pain and suffering.

The plaintiff alleged exposure to asbestos while working as a carpenter from 1975 to 1977 and that, as a result of the exposure, he developed mesothelioma of the tunica vaginalis (a form of testicular cancer). The jury found in favor of the plaintiff and awarded him $7 million for past pain and suffering, $12 million for future pain and suffering, $64,832 for past lost wages and $485,325 for future lost wages. The jury apportioned 76 percent of the fault to Tishman Liquidating Corporation, who then moved for an order setting aside the verdict.

The court noted that considerable deference should be given to a jury’s finding but that an award may be set aside “if it deviates materially from what would be reasonable compensation.” N.Y. CPLR 5501(c). The court then did a thorough analysis of the plaintiff’s damages compared to those awarded in several recent New York County asbestos trials. The highest recent award occurred in In re New York City Asbestos Litiqation (D’Ylisse), 16 Misc.3d 945 (Sup. Ct. N.Y. Co. 2007) where the jury awarded a total of $20 million dollars. D’Ulisse involved similar treatments to those undergone by the plaintiff but to a much greater extent, including multiple surgeries, complications related to chemotherapy, and intense pain.

Following the analysis, the court concluded that based on the nature, extent and duration of the plaintiff’s injuries, the awards of $7 million for past pain and suffering and $12 million for future pain and suffering deviate materially from what would be reasonable compensation.

New York County generally sees the highest asbestos verdicts in the state, which tends to drive verdicts up throughout the country. Asbestos defendants nationwide hope that the decision signals a changing trend, or at the very least recognition by the court that verdicts are rising at an unreasonable rate.