To Be Argued By:
KATHLEEN M. SULLIVAN
Time Requested: 30 Minutes
APL -2014-00317
New York County Clerk’s Index No. 190134/10
Court of Appeals
STATE OF NEW YORK
In Re: New York County Asbestos Litigation
RUBY E. KONSTANTIN, Individually and as Executrix of the Estate of
DAVE JOHN KONSTANTIN, deceased,
Plaintiffs-Respondents,
—against—
630 THIRD AVENUE ASSOCIATES, et al.,
Defendants,
TISHMAN LIQUIDATING CORPORATION,
Defendant-Appellant.
BRIEF FOR DEFENDANT-APPELLANT
d
E. LEO MILONAS
DAVID G. KEYKO
ERIC FISHMAN
PILLSBURY WINTHROP SHAW
PITTMAN LLP
1540 Broadway
New York, New York 10036
Telephone: (212) 858-1000
Facsimile: (212) 858-1500
KATHLEEN M. SULLIVAN
SHEILA L. BIRNBAUM
JANE M. BYRNE
WILLIAM B. ADAMS
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
Attorneys for Defendant-Appellant Tishman Liquidating Corporation
April 24, 2015
i
CORPORATE DISCLOSURE STATEMENT
Pursuant to Court of Appeals Rules 500.1(f) and 500.13(c)(3), Defendant-
Appellant Tishman Liquidating Corporation hereby states that it has no parents,
subsidiaries, or affiliates.
ii
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .......................................................... i
TABLE OF AUTHORITIES ..................................................................................... v
QUESTIONS PRESENTED FOR REVIEW ............................................................ 1
JURISDICTION ......................................................................................................... 1
PRELIMINARY STATEMENT ............................................................................... 2
STATEMENT OF FACTS ........................................................................................ 6
A. Mr. Konstantin’s Claims ....................................................................... 6
B. Mr. Dummitt’s Claims .......................................................................... 8
C. The Proceedings In The Trial Court ...................................................... 9
1. The Trial Consolidation Of The Konstantin And
Dummitt Claims .......................................................................... 9
2. The Jury Trial ............................................................................ 10
3. The Trial Court’s Decision On TLC’s Post-Trial Motion ........ 12
D. The First Department’s Decision And Order ...................................... 14
ARGUMENT ........................................................................................................... 18
POINT I
CPLR 602(A) BARS THE PREJUDICIAL CONSOLIDATION OF
ASBESTOS ACTIONS LACKING ANY COMMON ISSUE OF
FACT OR LAW APART FROM ASBESTOS EXPOSURE ......................... 18
A. Consolidation Under CPLR 602(a) Requires Common Issues
Of Law Or Fact And No Prejudice To A Substantial Right ............... 18
1. Common Questions Of Law Or Fact ........................................ 19
(a) Standard Under CPLR 602(a)......................................... 19
iii
(b) Application In Asbestos Context .................................... 21
2. No Prejudice To A Substantial Right ....................................... 24
(a) Standard Under CPLR 602(a)......................................... 24
(b) Application In Asbestos Context .................................... 25
(c) Curbs On Asbestos Consolidation In Other
Jurisdictions .................................................................... 29
B. The Two Cases Here Have No Common Issues Of Law Or Fact
Supporting Consolidation Under CPLR 602(a) .................................. 30
1. The Cases Have No Common Issues Of Fact ........................... 31
(a) Different Worksites, Occupations, And Products .......... 31
(b) Different Durations Of Exposure ................................... 34
(c) Different Diseases ........................................................... 35
(d) Different Health Statuses ................................................ 37
(e) Different Defendants, Counsel, And Witnesses ............. 37
2. The Cases Have No Common Issues Of Law........................... 38
3. The First Department Wrongly Placed The Burden On
TLC To Disprove The Existence Of Common Issues Of
Law Or Facts ............................................................................. 41
C. Consolidation Prejudiced TLC’s Substantial Right To A Fair
Trial In Violation Of CPLR 602(a) ..................................................... 42
1. Prejudice Resulting From Jury Confusion ................................ 43
2. Prejudice Resulting From Unfair Bolstering Of Claims ........... 47
3. Prejudice Resulting From The Repeated Recklessness
Charge ....................................................................................... 48
iv
POINT II
CPLR 5501(c) REQUIRES SEARCHING INQUIRY INTO
WHETHER THE $8 MILLION DAMAGES AWARD, EVEN
AFTER REMITTITUR, DEVIATES MATERIALLY FROM
COMPARABLE AWARDS .......................................................................... 50
A. The Legislature Enacted The “Deviates Materially” Standard In
CPLR 5501(c) To Keep Pain-And-Suffering Awards In A
“Tight Range” ...................................................................................... 50
B. New York Courts Have Not Curbed The Spiraling Pain-And-
Suffering Verdicts In Asbestos Cases ................................................. 54
C. The First Department Did Not Comply With CPLR 5501(c) In
Approving An Award That Deviates Materially From
Reasonable Compensation .................................................................. 56
1. The $4.5 Million Award For Past Pain And Suffering
Deviates Materially From Reasonable Compensation ............. 57
2. The “Unprecedented” $3.5 Million Award For Future
Pain And Suffering Deviates Materially From
Reasonable Compensation ........................................................ 58
3. The $8 Million Award For All Pain And Suffering
Deviates Materially From Reasonable Compensation ............. 59
CONCLUSION ........................................................................................................ 61
v
TABLE OF AUTHORITIES
Page(s)
Cases
Aikman v. Atex, Inc.,
224 A.D.2d 180 (1st Dep’t 1996) ........................................................... 20
Alexander v. AC & S, Inc.,
947 So. 2d 891 (Miss. 2007)................................................................... 29
Arnold v. Eastern Air Lines, Inc.,
712 F.2d 899 (4th Cir. 1983) .................................................................. 44
Bender v. Underwood,
93 A.D.2d 747 (1st Dep’t 1983) ....................................................... 24, 25
Bischofsberger v. A.O. Smith Water Prods.,
2012 N.Y. Slip Op. 32414(U), 2012 N.Y. Misc. LEXIS 4544
(Sup. Ct., N.Y. Cnty. Sept. 19, 2012) ..................................................... 23
Bradford v. John A. Coleman Catholic High School,
110 A.D.2d 965 (3d Dep’t 1985) ...................................................... 25, 47
In re Brooklyn Navy Yard Asbestos Litig.,
971 F.2d 831 (2d Cir. 1992) ............................................................. 22, 25
Brown v. Brooklyn Union Gas Co.,
137 A.D.2d 479 (2d Dep’t 1988) ............................................................ 43
C.K.S. Ice Cream Co. v. Frusen Gladje Franchise, Inc.,
172 A.D.2d 206 (1st Dep’t 1991) ........................................................... 20
Cain v. Armstrong World Indus.,
785 F. Supp. 1448 (S.D. Ala. 1992) ....................................................... 44
Cnty. of Westchester v. White Plains Ave., LLC,
105 A.D.3d 690 (2d Dep’t 2013) ............................................................ 39
Curry v. Am. Standard,
No. 08-CV-10228, 2010 WL 6501559 (S.D.N.Y. Dec. 13, 2010) ... 34, 39
D’Abreau v. Am. Bankers Ins. Co. of Fl.,
261 A.D.2d 501 (2d Dep’t 1999) ............................................................ 25
Donlon v. City of New York,
284 A.D.2d 13 (1st Dep’t 2001) ........................................... 51, 52, 53, 54
vi
Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415 (1996).................................................................... 51, 52, 53
Gasperini v. Ctr. for Humanities, Inc.,
66 F.3d 427 (2d Cir. 1995) ..................................................................... 52
George v. Celotex Corp.,
914 F.2d 26 (2d Cir. 1990) ..................................................................... 33
Gibbons v. Groat,
22 A.D.2d 996 (3d Dep’t 1964) .............................................................. 20
Glussi v. Fortune Brands Inc.,
276 A.D.2d 586 (2d Dep’t 2000) ...................................................... 24, 43
Harby Assocs., Inc. v. Seaboyer,
82 A.D.2d 992 (3d Dep’t 1981) .............................................................. 39
Konstantin v. 630 Third Ave. Assoc.,
37 Misc.3d 1206(A) (Sup. Ct., N.Y. Cnty. 2012) ...... 1, 12, 14, 16, 37, 57
Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982)................................................................................ 25
Lustenring v. AC&S, Inc.,
13 A.D.3d 69 (1st Dep’t 2004) ............................................................... 55
Malcolm v. Nat’l Gypsum Co.,
995 F.2d 346 (2d Cir. 1993) ... 4, 21, 22, 25, 31, 32, 34, 37, 43, 44, 46, 47
Matter of New York City Asbestos Litig. (Abrams),
2014 N.Y. Slip Op. 31893, 2014 WL 3689333
(Sup. Ct., N.Y. Cnty. July 18, 2014) ................................................ 29, 34
Matter of New York City Asbestos Litig. (Adler),
2012 N.Y. Slip Op. 32097(U), 2012 N.Y. Misc. LEXIS 3828
(Sup. Ct., N.Y. Cnty. Aug. 8, 2012) ........................................... 21, 35, 39
Matter of New York City Asbestos Litig. (Altholz),
11 Misc.3d 1063(A) (Sup. Ct., N.Y. Cnty. 2006) ...................... 24, 44, 48
Matter of New York City Asbestos Litig. (Assenzio),
2013 N.Y. Slip Op. 30801(U), 2013 N.Y. Misc. LEXIS 1630
(Sup. Ct., N.Y. Cnty. Apr. 19, 2013) ................................................ 23, 26
Matter of New York City Asbestos Litig. (Assenzio),
2015 N.Y. Slip Op. 30201(U), 2015 WL 514932
(Sup. Ct., N.Y. Cnty. Feb. 5, 2015) ........................................................ 23
vii
Matter of New York City Asbestos Litig. (Ballard),
2009 N.Y. Slip Op. 32104(U), 2009 WL 2996083
(Sup. Ct., N.Y. Cnty. Sept. 9, 2009) ................................................. 23, 25
Matter of New York City Asbestos Litig. (Barnes),
2008 N.Y. Slip Op. 31036, 2008 N.Y. Misc. LEXIS 8397
(Sup. Ct., N.Y. Cnty. Apr. 7, 2008) ................................................. 32, 35
Matter of New York City Asbestos Litig. (Bernard),
99 A.D.3d 410 (1st Dep’t 2012) ............................................................. 21
Matter of New York City Asbestos Litig. (Brooklyn Naval Shipyard Cases),
188 A.D.2d 214 (1st Dep’t 1993),
aff’d, 82 N.Y.2d 821 (1993) ................................................................... 19
Matter of New York City Asbestos Litig. (Brooklyn Naval Shipyard Cases),
191 A.D.2d 351 (1st Dep’t 1993) ........................................................... 55
Matter of New York City Asbestos Litig. (Capozio),
22 Misc. 3d 1109(A) (Sup. Ct., N.Y. Cnty. 2009). .................... 22, 32, 39
Matter of New York City Asbestos Litig. (Dummitt),
36 Misc.3d 1234(A) (Sup. Ct., N.Y. Cnty. 2012) ............................ 14, 37
Matter of New York City Asbestos Litig. (Konstantin),
121 A.D.3d 230 (1st Dep’t 2014) ...............................................................
........ 2, 4, 14, 16, 17, 23, 30, 31, 34, 35, 37, 38, 41, 46, 47, 49, 56, 57, 59
Matter of New York City Asbestos Litig. (Konstantin),
24 N.Y.3d 1216 (2015). .......................................................................... 17
Matter of New York City Asbestos Litig. (Maltese),
89 N.Y.2d 955 (1997) ............................................................................. 49
Matter of New York City Asbestos Litig. (Marshall),
28 A.D.3d 255 (1st Dep’t 2006) ............................................................. 55
Matter of New York City Asbestos Litig. (Peraica),
2013 N.Y. Slip Op. 32846(U), 2013 WL 6003218
(Sup. Ct., N.Y. Cnty. Nov. 6, 2013) ....................................................... 56
Matter of New York City Asbestos Litig. (Tancredi),
194 Misc.2d 214 (Sup. Ct., N.Y. Cnty. 2002). ................................... 7, 54
Matter of Seventh Judicial Dist. Asbestos Litig.,
191 Misc.2d 625 (Sup. Ct., Monroe Cnty. 2002) ............................. 21, 36
Matter of Vigo S.S. Corp. v. Marship Corp. of Monrovia,
26 N.Y.2d 157 (1970) ................................................................. 19, 20, 41
viii
Medina v. Chile Commc’ns, Inc,
15 Misc.3d 525 (Sup. Ct., Bronx Cnty. 2006) ........................................ 53
New York City Transit Auth. v. State Div. of Human Rights,
78 N.Y.2d 207 (1991) ............................................................................. 52
O’Connor v. Graziosi,
131 A.D.2d 553 (2d Dep’t 1987) ............................................................ 51
Payne v. Jones,
711 F.3d 85 (2d Cir. 2013) ............................................................... 53, 56
Penn v. Amchem Prods.,
85 A.D.3d 475 (1st Dep’t 2011) ................................................. 54, 58, 59
Reed v. City of New York,
304 A.D.2d 1 (1st Dep’t 2003) ............................................................... 52
Skelly v. Sachem Cent. Sch. Dist.,
309 A.D.2d 917 (2d Dep’t 2003) ...................................................... 24, 43
Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher,
299 A.D.2d 64 (1st Dep’t 2002) ............................................................. 19
Stephens v. Allstate Ins. Co.,
185 A.D.2d 338 (2d Dep’t 1992) ............................................................ 43
Sullivan Cnty. v. Edward L. Nezelek Inc.,
42 N.Y.2d 123 (1977) ............................................................................. 20
Tarshish v. Assoc. Dry Goods Corp.,
232 A.D.2d 246 (1st Dep’t 1996) ........................................................... 47
UBS Sec. LLC v. Red Zone LLC,
77 A.D.3d 575, 579 (1st Dep’t 2010) .................................................... 16
Statutes & Rules
Fed. R. Civ. P. 42(a).......................................................................................... 21
CPLR 602 ................................................ 1, 3, 4, 9, 18, 19, 20, 21, 24, 30, 38, 42
CPLR 1601 .................................................................................................. 14, 50
CPLR 1602 .................................................................................................. 14, 48
CPLR 5501 .................................... 1, 5, 13, 17, 50, 51, 52, 53, 54, 55, 56, 57, 60
CPLR 5522 .................................................................................................. 52, 57
CPLR 5602 .......................................................................................................... 1
ix
CPLR 5611 .......................................................................................................... 1
Ga. Code Ann. § 51-14-11 (2007) .................................................................... 30
Kan. Stat. Ann. § 60-4902(j) (2006) ................................................................. 30
Tex. Civ. Prac. & Rem. § 90.009 (2005) .......................................................... 30
Ohio Civ. R. 42(A)(2) ....................................................................................... 29
Other Authorities
12 J. Weinstein, H. Korn, & A. Miller, New York Civil Practice
¶ 5501.21 (3d 2010) ............................................................................... 51
In re Asbestos Litig.,
No. 77C-ASB-2 (Del. Super. Ct. New Castle Cnty. Dec. 21, 2007) ...... 29
Am. Cancer Soc’y, Unlocking the Mysteries of Metastasis (Jan 23, 2013) ..... 59
In re: Brayton Group 436 v. Asbestos Defendants,
No. 424859 (Calif. Super. Ct., San Francisco Cnty. May 14, 2008)...... 29
Executive Memoranda from Mario M. Cuomo, Governor of N.Y.,
on approving L. 1986, ch. 682 (July 30, 1986)
as reprinted in 1986 N.Y. Sess. Laws 3182 (1987) .......................... 51, 53
Helen E. Freedman, Selected Ethical Issues in Asbestos Litig.,
37 Sw. U. L. Rev. 511 (2008) ........................................................... 23, 28
Jennifer K. Robbennolt, Determining Punitive Damages: Empirical
Insights and Implications for Reform, 50 Buff. L. Rev. 103 (2002) ...... 53
Kenneth S. Bordens & Irwin A. Horowitz, The Limits of Sampling and
Consolidation in Mass Tort Trials: Justice Improved or Justice Altered?,
22 L. & Psychol. Rev. 43 (1998) ............................................................ 28
Mary Elizabeth C. Stern et al., NERA Economic Consulting, Snapshot of Recent
Trends in Asbestos Litigation (May 22, 2014) ....................................... 22
McKinney’s Cons. Laws of N.Y., Book 7b, CPLR § 5501:10
Appellate Division Review (McKinney’s 2010) ..................................... 51
Michelle J. White, Why the Asbestos Genie Won’t Stay in the
Bankruptcy Bottle, 70 U. Cin. L. Rev. 1319 (2002) .............................. 28
Michelle J. White, Asbestos Litigation: Procedural Innovations & Forum
Shopping, 35 J. Legal Stud. 365 (June 2006) ......................................... 28
Mich. Admin. Order No. 2006-6 (Aug. 9, 2006) .............................................. 29
x
Newman & Ahmuty, Appellate Review of Punitive Damage Awards,
in Insurance, Excess, and Reinsurance Coverage
Disputes (B. Ostrager & T. Newman eds. 1990) .................................... 51
Richard J. Montes & David A. Beatty, Are the Appellate Courts
Deviating From the “Deviates Materially” Standard of Review?,
77 Alb. L. Rev. 13 (2013-14) ........................................................... 54, 55
Vincent C. Alexander, 2014 Supplemental Practice Commentary, McKinney’s
Cons Laws of N.Y., Book 7B, CPLR 602 .......................................... 9, 20
QUESTIONS PRESENTED FOR REVIEW
1. Whether consolidation of asbestos-based personal injury actions for
trial violates CPLR 602(a) where the actions differ with respect to the worksites,
occupations, products, durations of exposure, diseases, plaintiff health statuses,
defendants, and legal theories at issue, and where the defendants are thus
prejudiced by jury confusion and the mutual bolstering of each claim’s likelihood
of success.
Answer: The Appellate Division incorrectly answered this question in the
negative.
2. Whether, in reviewing the excessiveness of an $8 million award for
pain and suffering for asbestos-related injury, which includes a concededly
unprecedented $3.5 million for 18 months of future pain and suffering, the
Appellate Division must consider awards approved in comparable cases to
determine whether that award “deviates materially from what would be reasonable
compensation” under CPLR 5501(c).
Answer: The Appellate Division incorrectly answered this question in the
negative.
JURISDICTION
This Court has jurisdiction over this appeal pursuant to CPLR 5602(a)(1)(i)
and CPLR 5611 because the underlying action originated in the Supreme Court,
2
New York County (A103); the decision below is an order of the Appellate
Division, First Department, entered on July 3, 2014, that finally determines the
action and is not appealable as a matter of right, Matter of New York City Asbestos
Litig. (Konstantin), 121 A.D.3d 230 (1st Dep’t 2014) (A7); and the Appellate
Division granted leave to appeal on December 9, 2014 (A5-6).
This Court has jurisdiction to review the questions presented, which were
raised below. See Konstantin v. 630 Third Ave. Assoc., 37 Misc.3d 1206(A), *12,
14-16 (Sup. Ct., N.Y. Cnty. 2012) (A85-86, A89-90).
PRELIMINARY STATEMENT
This appeal by permission of the Appellate Division, First Department,
follows a decision and order of that court affirming an $8 million judgment in
favor of Plaintiff David J. Konstantin and against Defendant-Appellant Tishman
Liquidating Corporation (“TLC”) for negligence and violation of Labor Law § 200
in connection with Mr. Konstantin’s alleged exposure to asbestos at worksites
where TLC’s alleged predecessor, Tishman Realty & Construction, was the
general contractor. The judgment arose from a 2011 trial in Supreme Court, New
York County (Madden, J.S.C.), under the New York City Asbestos Litigation
(“NYCAL”) case management order, in which seven mesothelioma cases were
initially consolidated despite the fact that they involved different worksites,
occupations, exposure periods, diseases, plaintiff health statuses and legal theories;
3
after settlements, only the claims of Mr. Konstantin against TLC and those of
Ronald Dummitt against Crane Co. remained, and the jury awarded more than $51
million in damages to the two plaintiffs.
CPLR 602(a) would normally not permit consolidation of cases like Mr.
Konstantin’s and Mr. Dummitt’s, which have nothing in common other than
allegations that asbestos exposure caused the plaintiffs’ injuries. That statute limits
consolidation to cases in which there are common issues of law or fact and where
no substantial prejudice will arise from joint trial. Here, however, Mr. Konstantin
was a carpenter while Mr. Dummitt was a boiler technician; Mr. Konstantin
worked in construction while Mr. Dummitt worked in Navy shipyards; TLC was a
general contractor while Crane was a component-part manufacturer; Mr.
Konstantin claimed two years of exposure to asbestos at TLC’s sites while Mr.
Dummitt claimed exposure over twelve to fifteen years; Mr. Konstantin’s case
involved dust from joint compound while Mr. Dummitt’s involved gaskets, valves,
and pumps; Mr. Konstantin and Mr. Dummitt suffered different forms of
mesothelioma; and Mr. Konstantin’s legal theory was negligence and workplace
liability under Labor Law § 200 while Mr. Dummitt pressed product-liability
theories. Rather than yielding efficiencies, trying these disparate cases together
resulted in what the trial court itself called a “very, very disjointed” trial. And the
4
evidence in each case improperly bolstered the claims in the other, to the
defendants’ prejudice.
Only in asbestos litigation would these pervasive differences between the
two cases and the ensuing prejudice to the defendants be ignored, for as the First
Department candidly stated in the decision below, “in asbestos cases, it has been
‘routine’ to join cases together for a single trial.” 121 A.D.3d at 242 (citation
omitted) (A24). The first issue presented asks this Court to reconsider the routine
practice of NYCAL and other New York courts to consolidate asbestos cases that
have virtually nothing in common. The landscape of asbestos litigation has
changed dramatically since a wave of early asbestos lawsuits threatened to
overwhelm the New York courts absent mass consolidation, see Malcolm v. Nat’l
Gypsum Co., 995 F.2d 346, 348 (2d Cir. 1993). An increasing number of sister
jurisdictions have accordingly limited the circumstances in which asbestos cases
may be tried together because of the due process concerns implicated by trials like
this one. Here, no new law is required, for faithful application of CPLR 602(a)
requires vacatur and remand of the judgment below for separate trial. The First
Department erred in evaluating the facts and legal theories presented in the
Konstantin and Dummitt cases at such a high level of generality that the statute’s
requirement of common issues of law and fact was rendered meaningless. And the
5
decision also improperly disregarded the prejudice to TLC’s substantial right to a
fair trial as a result of consolidation.
Routine consolidation of dissimilar asbestos actions also poses the risk of
jackpot verdicts like the $51 million verdict here, and the second issue presented
asks this Court to stem that tide by enforcing CPLR 5501(c). In affirming the $8
million damages award below—consisting of $4.5 million for 33 months of past
pain and suffering and $3.5 million for 18 months of future pain and suffering—
the First Department failed to ensure, as required by CPLR 5501(c), that the award
did not “deviate materially from what would constitute reasonable compensation.”
While it is true that Supreme Court granted remittitur of the jury verdict in Mr.
Konstantin’s case from $19.55 million to $8 million (and in Mr. Dummitt’s case,
from $32 million to $8 million), that remittitur started from an artificially high bar
and failed to bring about the consistency across judgments intended by enactment
of CPLR 5501(c). The remaining judgment still deviates materially from
comparable judgments for past pain and suffering given Mr. Konstantin’s activity
level during that period, and the $3.5 million award for future pain and suffering—
over $194,000 per month—is concededly unprecedented in amount.
For either or both of these reasons, the Decision and Order should be
vacated and the case remanded for new trial or further remittitur.
6
STATEMENT OF FACTS
A. Mr. Konstantin’s Claims
For approximately two years from late 1974 until early 1977, Mr. Konstantin
worked as a carpenter for various subcontractors during new construction at 622
Third Avenue and Olympic Towers in New York City. A260, A287-95. Tishman
Realty & Construction was the general contractor at both job sites. A288, A291,
A295. Mr. Konstantin testified that, as he and the other carpenters installed
sheetrock, other workers applied, smoothed, and sanded a joint compound applied
to the sheetrock (A307, A309-11), and then swept up the dust generated from the
sanding (A309-10). According to Mr. Konstantin, the joint compound was
manufactured by three companies: Georgia-Pacific Corporation, Kaiser Gypsum
Company Inc., and U.S. Gypsum (A313-14), each of which made both asbestos-
and non-asbestos-containing joint compound (see A510, A681-701). Mr.
Konstantin testified that he did not know if the joint compound at the worksites
contained asbestos. A399-400.
In mid-2008, a hydrocele—a “collection of fluid” often unrelated to
cancer—was discovered on one of Mr. Konstantin’s testicles. A372, A461. In
January 2010, Mr. Konstantin was diagnosed with mesothelioma of the tunica
vaginalis, a rare cancer of the lining of the testicles, which purportedly later spread
to his lungs. A372, A462-63, A472, A475. There are only 223 reported cases of
7
mesothelioma of the tunica vaginalis in the medical literature, including
individuals with no history of asbestos exposure. See A561, A1204.
In March 2010, Mr. Konstantin filed suit in Supreme Court, New York
County, against dozens of defendants, including TLC, as the alleged successor to
Tishman Realty & Construction, and Georgia-Pacific and Kaiser Gypsum, two of
the joint compound manufacturers. A103-54.1 Mr. Konstantin alleged indirect
exposure to asbestos dust created by drywall contractors when they sanded joint
compound and cleaned up that dust by sweeping, and he asserted claims against
TLC for common-law negligence and failure to maintain a safe workplace in
violation of Section 200 of the New York Labor Law. See A130-35.2
Because his counsel, Belluck & Fox, designated this case as an asbestos
lawsuit and filed it in New York City, Mr. Konstantin’s complaint was
automatically subject to the NYCAL case management order without any showing
that the products to which he was allegedly exposed contained asbestos.3 Counsel
1 The third joint compound manufacturer, U.S. Gypsum, was not named
as a defendant because of its bankruptcy filing. See Matter of New York City
Asbestos Litig. (Tancredi), 194 Misc.2d 214, 219 n.11 (Sup. Ct., N.Y. Cnty. 2002).
Georgia Pacific and Kaiser resolved the case by settlement and were non-parties to
the judgment. A99-101.
2 Mr. Konstantin died on June 6, 2012, approximately 9.5 months after
the trial. A1244. His claims are now being pursued by his wife, Ruby E.
Konstantin, individually and as executrix of Mr. Konstantin’s estate. A1245.
3 See Amended Case Management Order (May 26, 2011), available at
http://www.nycal.net.
8
subsequently requested that the case be assigned to an in extremis calendar for
expedited discovery. A1113-14. The trial court agreed and included Mr.
Konstantin’s case as part of an in extremis trial cluster of ten cases all brought by
the Belluck & Fox firm. See A155-59. The cases included in Belluck & Fox’s
cluster varied greatly in their facts.4
B. Mr. Dummitt’s Claims
One plaintiff in the cluster was Ronald Dummitt, who worked for twenty-
eight years as a boiler technician on Navy ships. A748-49. Mr. Dummitt alleged
that, over a twelve- to fifteen-year period between 1960 and 1977, he was directly
exposed to asbestos-containing dust when he scraped gaskets and changed pads on
valves and pumps in the ships’ mechanical and boiler rooms. A753-54. In April
2010, he was diagnosed with pleural mesothelioma. A192, A196.
Mr. Dummitt asserted product-liability claims based on failure to warn
against numerous manufacturers of the boiler components, including the valve
manufacturer, Crane. A952. It is undisputed that the Crane valves did not contain
asbestos, but they were conjoined with other parts that did contain asbestos. A952-
53. Mr. Dummitt’s claims raised legal issues as to when, if ever, a component
part manufacturer of a safe product must give warnings when the safe product is
4 See, e.g., A1167-68 (certain of the ten plaintiffs were exposed while in the
U.S. Navy, such that the government contractor defense was relevant; one was a
tobacco smoker, which raised unique causation issues; and one was an ironworker,
which raised unique exposure issues).
9
used together with an unsafe product, and whether failure to give such warnings
can be presumed to cause a plaintiff’s injury. A1126-27. Mr. Dummitt had no
claims against TLC.
C. The Proceedings In The Trial Court
1. The Trial Consolidation Of The Konstantin And Dummitt Claims
In January 2011, Plaintiffs’ counsel moved pursuant to CPLR 602(a) to
consolidate all ten of the cases in their cluster for a joint trial or, in the alternative,
to jointly try the seven cases in which the plaintiffs had mesothelioma followed by
a joint trial of the three cases in which the plaintiffs had lung cancer. A1166.5
Defendants opposed both requests, but in April 2011, the trial court ruled from the
bench that the seven mesothelioma cases would be consolidated for a single joint
trial and the three lung cancer cases would be consolidated for a second joint trial.
A1161-62, A1171-78.6 Five of the seven joined mesothelioma cases thereafter
5 Plaintiffs’ consolidation motion was not filed in any of the ten
consolidated case files, and Defendants’ joint opposition to consolidation and
individual affirmations were filed by the court in only one of the ten cases,
Altuchoff. See infra n.8.
6 The “standard for uniting separate actions is the same, regardless of
whether the court orders consolidation or joint trial,” but technically,
“consolidation” refers to the merging of separate cases into one action, whereas a
“joint trial” refers to hearing cases together that maintain their separate identity.
See Vincent C. Alexander, 2014 Supplementary Practice Commentary,
McKinney’s Cons Laws of N.Y., Book 7B, CPLR 602. The cases here were
jointly tried, not consolidated, but the First Department used the terms
interchangeably.
10
settled, leaving only the claims of Messrs. Konstantin and Dummitt to be tried
together.
2. The Jury Trial
In July 2011, fifteen months after Mr. Konstantin commenced this action, a
joint jury trial of these unrelated cases commenced. At the outset of the trial, the
court overruled defendants’ renewed objection to the joint trial. A449 (“I will note
as to the fact that defendants have objected to consolidation of the action for trial
from the inception.”). Mr. Konstantin attended the trial and testified. See, e.g.,
A236. Mr. Dummitt was too ill to attend the trial, and the jury thus heard only
play-back excerpts from his deposition testimony. See, e.g., A748.
The trial lasted nearly two months and was, as the trial court itself
acknowledged, “very, very disjointed.” A384. As explained more fully below (see
infra, at 44-46), throughout the trial, testimony and evidence was introduced out-
of-sequence; witnesses in one case stopped testifying mid-way to allow for
testimony by witnesses in the other case and then recommenced their testimony
days later; counsel and the trial court frequently mixed up the elements of the two
cases; and some witnesses offered testimony partially applicable to both cases and
partially applicable to one case.
The evidence at trial showed that not all joint-compound products contained
asbestos (at least 10% did not) (A510, A681-701), and Mr. Konstantin offered no
11
evidence that the joint compound used at his worksites actually contained asbestos
(see A399-400). The jury nevertheless found that Mr. Konstantin was exposed to
dust from asbestos-containing joint compound manufactured by Georgia-Pacific,
Kaiser Gypsum, and U.S. Gypsum (A1186), that none of those companies
provided warnings (A1187), and that the manufacturers’ failure to warn was a
substantial factor in causing Mr. Konstantin’s illness (id.; see also A1015-17).
As to TLC, the jury concluded that its purported predecessor Tishman
Realty & Construction exercised supervisory control over subcontractors that
brought the joint compound to the worksites (A1184); that Tishman Realty &
Construction knew or should have known that joint compound containing asbestos
was present and that the laborers were using unsafe sanding methods (id.); and that
Tishman Realty & Construction failed to use reasonable care to correct the unsafe
work practices (A1185). The jury also concluded that Mr. Konstantin was exposed
to asbestos at these worksites when Tishman Realty & Construction workers
cleaned up the dust generated by sanding the joint compound, and that such
exposure also substantially contributed to his mesothelioma. A1184. Although the
evidence showed that Tishman Realty & Construction had at most a general
awareness at the time that asbestos was dangerous, the jury was instructed on
recklessness (A978-79) and found that TLC had acted with reckless disregard for
Mr. Konstantin’s safety (A1186).
12
The jury concluded that TLC was 76% liable and the three manufacturers of
the joint compound were each 8% liable for Mr. Konstantin’s injuries. A1016-17,
A1188. The jury awarded Mr. Konstantin $19.55 million in damages: $7 million
for 33 months of past pain and suffering, $12 million for 18 months of future pain
and suffering, $64,832 for past lost earnings, and $485,325 for seven years of
future lost earnings. A16, A1188. The jury also awarded Mr. Dummitt $32
million in damages, including $16 million for pain and suffering. A17, A1200.
3. The Trial Court’s Decision On TLC’s Post-Trial Motion
In September 2011, TLC moved under CPLR 4404 to set aside the jury
verdict or, in the alternative, for a remittitur of the awards for past and future pain
and suffering. A1099. In September 2012, the trial court denied TLC’s motion to
set aside the verdict. 37 Misc.3d 1206(A), at *16-17 (A93-94).
As to consolidation, the court ruled that joint trial of the two cases was
proper as there was “sufficient similarity” in occupations, and the distinct
mesothelioma diagnoses and different legal theories did not prejudice TLC. Id. at
*12 (A85). The court also ruled that TLC did not suffer prejudice to its substantial
rights because the court gave sufficient clarifying instructions to the jury and any
sequencing issues were attributable to “budgetary restraints restricting court
hours.” Id. at *12 (A86).
13
The court likewise rejected TLC’s substantive challenges to the verdict,
ruling, among other things, that there was sufficient circumstantial evidence for a
reasonable jury to conclude that the joint compounds used at the worksites
contained asbestos and, similarly, that TLC knew, or should have known, of the
unsafe working conditions. See id. at *13-14 (A87-89). The court ruled that the
jury could reasonably find that TLC acted recklessly because the record supports
an inference that TLC was generally aware of the dangers of asbestos prior to Mr.
Konstantin’s alleged exposure. Id. at *10 (A81-82).
The court, however, did order a new damages trial unless Mr. Konstantin
agreed to accept remittitur to $8 million, reflecting $4.5 million for 33 months of
past pain and suffering and $3.5 million for 18 months of future pain and suffering.
Id. at *16-17 (A93-94). This followed the court’s determination that, based on
“the nature, extent and duration of Mr. Konstantin’s injuries,” the jury’s $19
million award deviated materially from reasonable compensation under CPLR
5501(c). Id. at *16 (A93).
Mr. Konstantin accepted the remittitur, and judgment in the amount of
$7,195,713.91 was entered against TLC in November 2012. A95-101; see also
A1247-48.7 Since the jury found that TLC was more than 50% percent liable (and
7 The judgment reflects a $2,101,576.66 off-set of the damages award,
plus interest, costs, and disbursements. A95-101.
14
had acted recklessly), it is jointly and severally liable for the entire award. See
CPLR 1601, 1602(7).
Crane likewise requested remittitur of the $32 million verdict awarded to
Mr. Dummitt. In August 2012, a month before the trial court ruled on TLC’s
motion, it ordered exactly the same relief as to Crane—a new damages trial unless
Mr. Dummitt stipulated to an $8 million award for pain and suffering (37 Misc.3d
1206(A) at *15) (A94)—notwithstanding the undisputed evidence that Mr.
Dummitt had experienced different pain and suffering than Mr. Konstantin, see
Matter of New York City Asbestos Litig. (Dummitt), 36 Misc.3d 1234(A), *22, *24
(Sup. Ct., N.Y. Cnty. 2012). Mr. Dummitt accepted the remittitur. A18.
D. The First Department’s Decision And Order
TLC and Crane appealed, and, in July 2014, the First Department affirmed
both judgments in a single decision and order. 121 A.D.3d 230 (A48) (per
Mazzarelli, J.P.). As to Mr. Konstantin, the court held, first, that the trial court had
properly consolidated the two cases. The decision stated that “in asbestos cases it
has been ‘routine’ to join cases together for a single trial” (id. at 242 (citation
omitted) (A24)), and that consolidation satisfied the factors set forth in the Second
Circuit’s decision in Malcolm (see id. at 242-44 (A23-28)).
As to the first two Malcolm factors (common worksite and occupations), the
decision “recognize[d] that a shipboard boiler room is a different physical
15
environment than a building under construction” but held that plaintiffs’ exposures
were sufficiently similar because both were “in the immediate presence of dust that
was released at the same time as they were performing their work.” Id. at 244
(A26-27). Although Mr. Konstantin as the moving party bore the burden of
demonstrating the existence of common facts, the First Department stated that
“TLC has failed to articulate why the differences in the environments and job
duties had such an impact on the manner of exposure that” separate trials were
needed. Id. (A27). The court found the third Malcolm factor (similar duration of
exposure) satisfied because both plaintiffs’ “exposure periods ended in 1977,
meaning that the state of the art was the same for both cases.” Id. (A27). As to the
fourth Malcolm factor (type of disease), the court found the differences between
Mr. Konstantin’s and Mr. Dummitt’s illnesses not “sufficiently significant” to
warrant separate trial without mentioning the extreme rarity of Mr. Konstantin’s
testicular mesothelioma. Id. (A27). The court found the fifth Malcolm factor
(common health status) satisfied even though Mr. Konstantin testified and Mr.
Dummitt was too ill to appear in court, incorrectly stating that the jury was not
“aware that [Mr. Dummitt’s] physical condition was dire at the time of trial.” Id.
(A27).
The court acknowledged that the two cases were predicated on different
legal theories (workplace liability and product liability), but nonetheless held that
16
the legal issues were common by generalizing that “both theories ultimately
required a showing that defendants failed to act reasonably in permitting the men
to become exposed to asbestos.” Id. at 245 (A28).
As to prejudice, the First Department decision held that the disjointed nature
of the consolidated trial was principally due to “budgetary constraints” and that
arguments about jury confusion were “speculative” given the trial court’s “nearly
continuous limiting, explanatory and curative instructions” and other “management
devices.” Id. (A29). The court concluded that the jury’s “individualized verdict
for each plaintiff” supported the absence of prejudice (id. at 246 (A30)), even
though the trial court had reduced that verdict by almost 70% (37 Misc.3d
1206(A), at *17 (A94)).8
Second, the First Department decision declined to vacate or reduce the $8
million damages award for pain and suffering. Id. at 255 (A46-47). The court
agreed with the trial court that the pain-and-suffering period covered 33 months,
beginning in late 2008 when Mr. Konstantin developed a hydrocele. Id. (A46). It
8 Two dissenting Justices would not have considered the consolidation
issue because the record was incomplete. 121 A.D.3d 256 (A49). The majority,
however, explained that the “record provides adequate facts to meaningfully
determine whether consolidation was properly granted.” Id. at 241 (citing UBS
Sec. LLC v. Red Zone LLC, 77 A.D.3d 575, 579 (1st Dep’t 2010) (issue is whether
“[m]eaningful appellate review … has … been rendered impossible.”) (brackets in
original)) (A22). Indeed, all of the facts that bear upon the consolidation
determination (e.g., occupation, job site, period of exposure, product, disease, case
theory) are undisputed and are in the record.
17
then noted that the $4.5 million award for past pain and suffering equates to
$136,000 per month, which was within the range of prior awards. Id. (A46). The
court acknowledged that the $3.5 million award for future pain and suffering was
“unprecedented” but suggested that it was “supported by the fact that, until the end
of his life, he suffered two mesotheliomas, in his testes and chest, tantamount to
twice as much pain and suffering.” Id. (A47). The court did not mention its
obligation under CPLR 5501(c) to determine whether the award “deviates
materially from reasonable compensation” and did not compare Mr. Konstantin’s
condition to other cases.9
In August 2014, TLC moved for reargument or, in the alternative, leave to
appeal. On December 9, 2014, the First Department denied reargument, but
granted TLC leave to appeal to this Court, certifying the question of whether the
Decision and Order affirming the trial court’s judgment was properly made. A5-6.
Mr. Konstantin thereafter moved to dismiss the appeal; this Court denied that
motion in February 2015. Matter of New York City Asbestos Litig. (Konstantin),
24 N.Y.3d 1216 (2015).
9 The First Department also held that the verdict accurately apportioned
76% liability to TLC, concluding that TLC “did not adduce any evidence
demonstrating the joint compound manufacturers’ responsibility” (121 A.D.3d at
246-47 (A31-32)), and that the jury rationally concluded that TLC had acted
recklessly in light of evidence purportedly showing TLC’s knowledge by 1969 that
long-term exposure to asbestos was harmful (id. at 247-48 (A33-34)).
18
ARGUMENT
POINT I
CPLR 602(A) BARS THE PREJUDICIAL CONSOLIDATION OF
ASBESTOS ACTIONS LACKING ANY COMMON ISSUE OF FACT OR
LAW APART FROM ASBESTOS EXPOSURE
The decision below should be vacated and the case remanded for new trial
because the First Department erred under CPLR 602(a) in affirming the
consolidation for trial of Mr. Konstantin’s action against TLC with Mr. Dummitt’s
action against Crane. Except at an impermissibly high level of generality, the
actions involved no common questions of law or fact, as required for consolidation
under CPLR 602(a), and in any event consolidation prejudiced TLC’s substantial
right to a fair trial. The lengthy and disjointed trial confused the jury and allowed
each plaintiff’s claims to bolster the other’s, resulting in an outsize verdict of over
$51 million. Only under an unstated “asbestos exception” to CPLR 602(a) could
the consolidation below be sustained, and dramatic changes in the landscape of
asbestos litigation in the past several decades warrant this Court’s clarification that
such distortion of the statute is no longer acceptable and that consolidation in
asbestos actions should no longer be “routine.”
A. Consolidation Under CPLR 602(a) Requires Common Issues Of Law
Or Fact And No Prejudice To A Substantial Right
CPLR 602(a) provides that, “[w]hen actions involving a common question
of law or fact are pending before a court, the court, upon motion, may order a joint
19
trial of any or all the matters in issue.” The party requesting consolidation has the
threshold burden of showing “a plain identity between the issues involved in the
two controversies.” Matter of Vigo S.S. Corp. v. Marship Corp. of Monrovia, 26
N.Y.2d 157, 161 (1970). If the movant satisfies that burden, then the opposing
party has the “burden of demonstrating prejudice to a substantial right.” Id. at 162.
CPLR 602(a) does not distinguish among types of cases—those involving asbestos
or otherwise—that may be consolidated.
1. Common Questions Of Law Or Fact
(a) Standard Under CPLR 602(a)
This Court has recognized a limited role for consolidation where necessary
to ensure consistency of outcomes or to further judicial economy and efficiency in
cases with common issues of law or fact. See, e.g., Matter of Vigo, 26 N.Y.2d at
162 (“consolidation will make it possible to determine those issues in one
proceeding involving all of the interested parties and to avoid the possibility of
conflicting awards as well as the additional time and expense of separate
proceedings”); see also Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher,
299 A.D.2d 64, 73-74 (1st Dep’t 2002) (consolidation may “prevent injustice
which would result from divergent decisions based on the same facts”) (citation
and quotation marks omitted); Matter of New York City Asbestos Litig. (Brooklyn
Naval Shipyard Cases), 188 A.D.2d 214, 225 (1st Dep’t 1993), aff’d, 82 N.Y.2d
20
821 (1993) (“The joint trial format has the potential to” result in efficiencies). The
party seeking consolidation must demonstrate “at least some important rules of law
and some substantial issues of fact to be determined that are in common to both
actions.” Gibbons v. Groat, 22 A.D.2d 996, 997 (3d Dep’t 1964) (citation
omitted); see also Matter of Vigo, 26 N.Y.2d at 161. Even “[w]here lawsuits arise
out of the same transactions,” however, if “the proof with respect to each lawsuit
does not overlap, the identity of facts is not sufficient to merit consolidation or a
joint trial of the lawsuits ….” C.K.S. Ice Cream Co. v. Frusen Gladje Franchise,
Inc., 172 A.D.2d 206, 208-09 (1st Dep’t 1991) (citation and quotation marks
omitted).
Outside of asbestos litigation, consolidation is infrequent but has been
permitted in cases that involve a single product, see, e.g., Aikman v. Atex, Inc., 224
A.D.2d 180, 180 (1st Dep’t 1996), a single construction project, Sullivan Cnty. v.
Edward L. Nezelek Inc., 42 N.Y.2d 123, 127-29 (1977), or a single course of
action, see, e.g., Vincent C. Alexander, 2014 Supplemental Practice Commentary,
McKinney’s Cons Laws of N.Y., Book 7B, CPLR 602:2 (McKinney’s) (recently
consolidated case “did not involve merely discrete and separate acts … by the
same defendants” but an “overriding unifying … fraud[ulent] scheme by all of the
defendants”).
21
(b) Application In Asbestos Context
Although this Court has never approved any particular criteria for
consolidation of asbestos cases,10 many New York courts have purported to
evaluate commonality of factual issues in such cases by considering some or all of
the non-exclusive factors that the Second Circuit set forth in Malcolm, 995 F.2d at
350-51, decided under Fed. R. Civ. P. 42(a), the federal counterpart to CPLR
602(a): (1) worksite; (2) occupation; (3) the period of exposure; (4) the type of
disease; (5) health status; (6) the status of discovery; (7) identity of plaintiffs’
counsel; and (8) the type of cancer. See, e.g., Matter of New York City Asbestos
Litig. (Bernard), 99 A.D.3d 410, 411 (1st Dep’t 2012). The identity of defense
counsel, Matter of Seventh Judicial Dist. Asbestos Litig., 191 Misc.2d 625, 629
(Sup. Ct., Monroe Cnty. 2002), and commonality in the asbestos-containing
products to which plaintiffs were allegedly exposed, Matter of New York City
Asbestos Litig. (Adler), 2012 N.Y. Slip Op. 32097(U), 2012 N.Y. Misc. LEXIS
10 More than two decades ago, this Court affirmed, without opinion,
consolidation of asbestos cases of employees from the Brooklyn Navy Yard, see
Matter of New York City Asbestos Litig. (Brooklyn Naval Shipyard Cases), 188
A.D.2d 214, 225 (1st Dep’t 1993), aff’d, 82 N.Y.2d 821 (1993). The First
Department’s (pre-Malcolm) decision discussed only the potential efficiencies that
may result from joint trial of cases involving workers who were injured at the same
shipyard. Id.; see also Malcolm, 995 F.2d at 353 (“The Brooklyn Navy Yard was
owned and operated for the entire relevant time period by one entity, the United
States government. Because uniformity is a way of life with the military, the
commonality of the … cases [of Navy Yard workers joined for trial] cannot be
overstated.”). This Court has not otherwise ruled on consolidation in the asbestos
context.
22
3828, at *24 (Sup. Ct., N.Y. Cnty. Aug. 8, 2012), have also been considered. The
overlap of legal issues has been considered as well. See, e.g., Matter of New York
City Asbestos Litig. (Capozio), 22 Misc. 3d 1109(A), *5 (Sup. Ct., N.Y. Cnty.
2009).
When the Second Circuit decided Malcolm more than two decades ago,
asbestos lawsuits were placing significant burdens on the New York state and
federal court systems, see 995 F.2d at 348, and consolidation of asbestos cases had
become increasingly “commonplace,” id. at 350; Mary Elizabeth C. Stern et al.,
NERA Economic Consulting, Snapshot of Recent Trends in Asbestos Litigation at
1 (May 22, 2014).11 At that time, consolidation might well have tended to increase
judicial efficiency because the plaintiffs in consolidated cases worked together in
the same workplace, were exposed to the same products, manifested their diseases
at approximately the same time, and were suing the same defendants. See, e.g., In
re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992)
(consolidating asbestos cases of employees at the Brooklyn Navy Yard).
The landscape has drastically changed since then. Since 2007, the number
of new asbestos-related filings nationally has hovered around 20% of 2001 levels.
See Stern, supra, at 7. Moreover, “[t]he bankruptcies of most of the major raw
11 Available at http://www.nera.com/content/dam/nera/publications/
archive2/PUB_Asbestos_Litigation_Trends_0514.pdf.
23
material providers and product manufacturers have” resulted in plaintiffs pursuing
“what have been termed peripheral defendants [such as those] who owned
premises where asbestos was present.” Helen E. Freedman, Selected Ethical Issues
in Asbestos Litig., 37 Sw. U. L. Rev. 511, 512 (2008). As a result, joint trials in
current asbestos cases typically involve (as here) disparate plaintiffs suing different
defendants in cases involving different worksites, exposure histories, and illnesses,
with few if any fact witnesses in common.
Yet, in contrast to other types of cases and without regard to the changes in
asbestos litigation, New York courts (as here) continue to treat consolidation of
asbestos cases as “routine”12 and apply a highly permissive standard to such cases.
See, e.g., Matter of New York City Asbestos Litig. (Assenzio), 2013 N.Y. Slip Op.
30801(U), 2013 N.Y. Misc. LEXIS 1630, at *5-6 (Sup. Ct., N.Y. Cnty. Apr. 19,
2013) (allowing consolidation because “historically … NYCAL cases have been
consolidated” and “strict construction” of relevant factors “would undermine the
purpose of consolidation”); Matter of New York City Asbestos Litig. (Ballard),
12 121 A.D.3d at 242 (A24) (“[I]n asbestos cases, it has been ‘routine’ to
join cases together for a single trial”) (citation omitted); see also Bischofsberger v.
A.O. Smith Water Prods., 2012 N.Y. Slip Op. 32414(U), 2012 N.Y. Misc. LEXIS
4544, at *3 (Sup. Ct., N.Y. Cnty. Sept. 19, 2012) (“In the case of asbestos
litigation, joint trials … have been routinely permitted.”); Matter of New York City
Asbestos Litig. (Assenzio), 2015 N.Y. Slip Op. 30201(U), 2015 WL 514932, at *19
(Sup. Ct., N.Y. Cnty. Feb. 5, 2015) (citing First Department’s decision below for
the proposition).
24
2009 N.Y. Slip Op. 32104(U), 2009 WL 2996083 (Sup. Ct., N.Y. Cnty. Sept. 9,
2009) (consolidating asbestos claims despite lack of common worksite, occupation,
product, time frame of exposure, diseases, and heath status); Matter of New York
City Asbestos Litig. (Altholz), 11 Misc.3d 1063(A), *3 (Sup. Ct., N.Y. Cnty. 2006)
(“precise commonalities” not required).
2. No Prejudice To A Substantial Right
(a) Standard Under CPLR 602(a)
“[W]here prejudice to a substantial right is shown by the party opposing the
motion, consolidation should not be granted even if common questions of law or
fact exist.” Skelly v. Sachem Cent. Sch. Dist., 309 A.D.2d 917, 917 (2d Dep’t
2003). For example, if “individual issues predominate[] concerning particular
circumstances applicable to each plaintiff,” “the resulting and cumulative prejudice
to [the defendant] far outweighs the benefit derived from the conduct of a joint
trial.” Bender v. Underwood, 93 A.D.2d 747, 748 (1st Dep’t 1983) (reversing
consolidation of medical malpractice cases against one defendant); see also Glussi
v. Fortune Brands Inc., 276 A.D.2d 586, 587 (2d Dep’t 2000) (reversing grant of
joint trial of claims by smokers with some common questions of law and fact but
also “particular circumstances surrounding each plaintiff’s smoking history, as
well as their medical history,” which risks “cumulative prejudice” to the
defendants) (internal citation and quotation marks omitted).
25
The U.S. Supreme Court has “emphasized time and again” that due process
requires that a party have “the opportunity to present [one’s] case and have its
merits fairly judged.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982);
see also Malcolm, 995 F.2d at 350 (“The benefits of efficiency can never be
purchased at the cost of fairness.”); Brooklyn Navy Yard Asbestos Litig., 971 F.2d
at 853 (“The systemic urge to aggregate litigation must not be allowed to trump
our dedication to individual justice ….”). Trying disparate cases together threatens
a defendant’s substantial right to a fair trial and due process by creating a
“possibility of confusion for the jury.” Bender, 93 A.D.2d at 748; see also
D’Abreau v. Am. Bankers Ins. Co. of Fl., 261 A.D.2d 501, 502 (2d Dep’t 1999)
(where “issues are … dissimilar,” “consolidation … will result in jury confusion
and prejudice the right of the … parties to a fair trial”). Consolidation also
increases the risk that one plaintiff’s evidence will bolster unrelated claims,
causing unfair prejudice to the defendants. See, e.g., Bradford v. John A. Coleman
Catholic High School, 110 A.D.2d 965, 966 (3d Dep’t 1985).
(b) Application In Asbestos Context
These concerns have been discounted or simply ignored in the asbestos
context. See, e.g., Matter of New York City Asbestos Litig. (Ballard), 2009 N.Y.
Slip Op. 32104(U), 2009 WL 2996083 (“jury trial innovations” such as “written
juror questions” will “minimize any prejudice arising from the potential confusion
26
of evidence”); Matter of New York City Asbestos Litig. (Assenzio), 2013 N.Y. Slip
Op. 30801(U), 2013 N.Y. Misc. LEXIS 1630, at *6 (with “management techniques
[such as] juror notebooks … the jury should be able to differentiate and evaluate
the evidence as to each defendant … so as to prevent bolstering or other prejudice
to defendants”).
The result is that consolidated asbestos cases generate much higher average
damages outcomes than individual asbestos cases. As shown in the following
chart, which contains NYCAL verdicts from 2009 to the present based on publicly
available data, there is a stark disparity between the verdicts in consolidated and
individual asbestos cases. The largest verdict in a consolidated asbestos case ($60
million) is nearly three times the largest verdict in an individual case ($20 million).
And the average verdict in a consolidated asbestos case ($17.7 million) is over
three times larger than in individual cases ($4.3 million):13
13 In the following chart, cases joined for trial are grouped together in the
left column, as indicated by highlighting. (The cases with which Peraica and Juni
were joined settled before trial ended.) Verdicts have been rounded where
appropriate and awards to spouses, which reach $10 million in certain cases, have
been omitted.
27
Verdicts In Joint Trials Verdicts In Individual Trials
Serna
No. 190183/2012
$60 million Hillyer
No. 190132/2013
$20 million
Levy
No. 190200/2012
$50 million North
No. 190114/2013
$7 million
Assenzio
No. 190008/2012
$20 million Wallace
No. 115189/2007
$5 million
Brunck
No. 190026/2012
$20 million Benton
No. 109661/2002
$2.5 million
Vincent
No. 190184/2012
$20 million Derogatis
No. 190150/2011
$0
Peraica
No. 190339/2011
$35 million Dietz
No. 105736/1999
$0
Dummitt
No. 190196/2010
$32 million Vega
No. 190409/2011
$0
Konstantin
No. 190134/2010
$19.55 million Zaugg
No. 190008/2010
$0
Sweberg
No. 190017/2013
$15 million
Hackshaw
No. 190022/2013
$10 million
Koczur
No. 122340/1999
$11.6 million
McCarthy
No. 100490/1999
$8.5 million
Juni
No. 190315/2012
$8 million
McCloskey
No. 190441/2012
$4 million
Terry
No. 190403/2012
$3 million
Brown
No. 190415/2012
$2.5 million
Paolini
No. 124397/2002
$0
Michaelski
No. 100021/2007
$0
Average Verdict $17.7 million Average Verdict $4.3 million
28
It is well documented that consolidation of tort cases “can alter the patterns
of verdicts and awards handed down by jurors” in a manner that is systematically
“more favorable to the plaintiffs than the defense.” Kenneth S. Bordens & Irwin
A. Horowitz, The Limits of Sampling and Consolidation in Mass Tort Trials:
Justice Improved or Justice Altered?, 22 L. & Psychol. Rev. 43, 58, 66 (1998).
One study found that asbestos plaintiffs are more likely, to a statistically significant
degree, to win in a consolidated trial than plaintiffs in individual trials. See
Michelle J. White, Why the Asbestos Genie Won’t Stay in the Bankruptcy Bottle,
70 U. Cin. L. Rev. 1319, 1337-38 (2002). This occurs because, for example,
“some asbestos defendants appear callous because they failed to label their
products as dangerous, and callous defendants tend to make jurors more
sympathetic to plaintiffs.” Michelle J. White, Asbestos Litigation: Procedural
Innovations & Forum Shopping, 35 J. Legal Stud. 365, 373 (June 2006).
Consolidation also may force defendants to settle weak cases on unfavorable
terms rather than risk a jackpot verdict influenced by evidence from other
consolidated cases. See Freedman, supra, at 517 (consolidation has “led to
settlements of a huge number of cases, some of dubious value, … provid[ing] an
overly hospitable environment for weak cases”) (quotation marks omitted); see
also A1173 (trial court acknowledging that “by the date for jury selection,
29
historically, in asbestos litigation, in this county, [the] number [of cases remaining
for trial] is greatly reduced” due to settlement).
(c) Curbs On Asbestos Consolidation In Other Jurisdictions
Widespread concern about unfair outcomes in consolidated asbestos trials
over the past decade has prompted courts and legislatures in sister jurisdictions to
substantially curb the use of trial consolidation in asbestos cases.14 For example,
courts in Michigan,15 Delaware,16 Ohio,17 Mississippi,18 and San Francisco,19 have
prohibited consolidation of disparate asbestos trials absent party consent, as have
14 See Matter of New York City Asbestos Litig. (Abrams), 2014 N.Y. Slip
Op. 31893, 2014 WL 3689333, *4 (Sup. Ct., N.Y. Cnty. July 18, 2014) (observing
trend in other States “to prohibit the consolidation of asbestos trials absent the
consent of all parties”).
15 Mich. Admin. Order No. 2006-6 (Aug. 9, 2006) (prohibiting joinder of
asbestos cases for trial or settlement and referencing, in a concurring opinion by
Markman, J., the need to “restore the traditional principles of due process in
asbestos cases by ensuring that they are resolved on the basis of their individual
merit”).
16 In re Asbestos Litig., No. 77C-ASB-2 (Del. Super. Ct. New Castle Cnty.
Dec. 21, 2007) (Standing Order No. 1) (prohibiting joinder of asbestos cases for
trial without the consent of all parties, unless the claims relate to same person or
his/her household).
17 Ohio Civ. R. 42(A)(2) (prohibiting joinder of asbestos cases for trial
without the consent of all parties, unless the claims relate to same person or his/her
household).
18 Alexander v. AC & S, Inc., 947 So. 2d 891, 895 (Miss. 2007) (“[P]laintiffs
may not be joined … unless their claims are connected by a distinct, litigable
event.”).
19 In re: Brayton Group 436 v. Asbestos Defendants, No. 424859 (Calif.
Super. Ct., San Francisco Cnty. May 14, 2008) (vacating sua sponte order
consolidating asbestos cases).
30
legislatures in Kansas,20 Texas,21 and Georgia.22 This trend reflects the changing
landscape of asbestos litigation, and calls for reconsideration of the “routine” trial
consolidation of asbestos cases in New York.
B. The Two Cases Here Have No Common Issues Of Law Or Fact
Supporting Consolidation Under CPLR 602(a)
Starting from the premise that, “in asbestos cases, it has been ‘routine’ to
join cases together for a single trial,” 121 A.D.3d at 242 (A24), the First
Department erroneously approved a joint trial of two asbestos cases here that lack
any common issue of law or fact other than the alleged inhalation of asbestos. The
court applied the Malcolm factors at such a generalized level as to render them
meaningless, disregarded the distinct issues of law in each case, shifted to TLC the
burden of proof of commonality, and disregarded the plain prejudice that flowed
from the consolidation. This departure from the plain text of CPLR 602(a) and
from its normal application outside the asbestos context created no judicial
efficiencies and gravely prejudiced the defendants. The decision should be vacated
and remanded for separate trial.
20 Kan. Stat. Ann. § 60-4902(j) (2006) (prohibiting joinder of asbestos cases
for trial without the consent of all parties, unless the claims relate to same person
or his/her household).
21 Tex. Civ. Prac. & Rem. § 90.009 (2005) (prohibiting joinder of asbestos
cases for trial without consent of all parties, unless claims relate to same person).
22 Ga. Code Ann. § 51-14-11 (2007) (prohibiting joinder of asbestos cases
for trial without the consent of all parties, unless the claims relate to same person
or his/her household).
31
1. The Cases Have No Common Issues Of Fact
(a) Different Worksites, Occupations, And Products
The First Department held that Messrs. Konstantin and Dummitt “were both
exposed to asbestos in a similar manner”—namely, as dust—even though they
engaged in different work in different occupations in different worksites (a ship
boiler and a construction site). 121 A.D.3d at 244 (A26-27). But workers
asserting an asbestos-related claim, regardless of their job or worksite or the
product involved, almost invariably allege that they were in the presence of some
type of dust while performing some task. In finding commonality here, the court
erred as a matter of law in ignoring the important differences in the plaintiffs’
worksites, occupations, and exposures to asbestos-containing products.
The existence of a common worksite is highly relevant to consolidation
because it establishes, e.g., “common ownership, … suppliers or … practices.”
Malcolm, 995 F.2d at 353. Malcolm itself held that “[t]he crucial difference
between the Brooklyn Navy Yard case,” where consolidation was approved, and
Malcolm, where it was not, was that in Malcolm, “there simply was no primary
worksite.” Id. (emphasis in original). In Malcolm, although plaintiffs alleged a
“primary type of worksite: powerhouses,” there “was no showing that the
powerhouses … provided anything like the uniformity at the Brooklyn Navy
Yard.” Id. (emphasis in original). Here, the building construction site where Mr.
32
Konstantin worked had nothing in common with the ship in a naval shipyard where
Mr. Dummitt worked, and thus there was no overlapping evidence as to common
practices or exposure. See, e.g., Matter of New York City Asbestos Litig. (Barnes),
2008 N.Y. Slip Op. 31036, 2008 N.Y. Misc. LEXIS 8397, at *12 (Sup. Ct., N.Y.
Cnty. Apr. 7, 2008) (rejecting “creative[]” argument that a building is like “a land-
based Naval ship”) (quotation marks omitted).
Additionally, a “worker’s exposure to asbestos must depend mainly on his
occupation.” Malcolm, 995 F.2d at 351. Malcolm, for example, held that there
was no commonality between “insulators, who actually applied the asbestos [and]
suffered from direct asbestos exposure, [and] sheet-metal workers [who] suffered
from asbestos exposure in a bystander capacity.” Id. Here, Mr. Dummitt, a boiler
technician, suffered direct exposure (A959), while Mr. Konstantin, a carpenter,
was a bystander (A970). Such differences in occupation and the related exposure
“necessitat[e] a separate trial because of the … introduction of voluminous
evidence that [is] wholly irrelevant to the other case[].” Matter of New York City
Asbestos Litig. (Capozio), 22 Misc.3d 1109(A), at *5.
Consolidation is also unwarranted where, as here, the asbestos-causing
products at issue are different. See Matter of New York City Asbestos Litig.
(Barnes), 2008 N.Y. Misc. LEXIS 8397, at *12 (severing plaintiff in part due to
lack of commonality of product exposure). In Mr. Dummitt’s case there was no
33
dispute that, while Crane’s valves did not themselves contain asbestos (A952), the
gaskets used with those valves did contain asbestos (A1126). Mr. Konstantin’s
case, by contrast, involved joint compound (A972), and the jury had to decide
whether the joint compound allegedly used on TLC’s construction site contained
asbestos (A1137).
The difference in products also presented different issues between the cases
as to what preventive measures could have been taken. For example, Crane argued
that “it had no duty to warn as it did not manufacture any of the asbestos-
containing gaskets, … used with its valves” (A953), and thus the jury had to decide
whether Crane had a duty to warn when it knew its product was used with an
asbestos-containing product (see A1126). TLC, for its part, argued that it did not
know that asbestos-containing joint compound was used at the relevant worksites
(A973-74), and thus the jury had to decide whether TLC could have taken any
preventive measure at all (see A1139).
Different occupations and products also created unique issues in each case as
to the state of the art, which varies not only over time but also across industries.
“The state of the art” is “defined in terms of whether the dangers of asbestos were
reasonably foreseeable or scientifically discoverable at the time of plaintiff’s
exposure.” George v. Celotex Corp., 914 F.2d 26, 29 (2d Cir. 1990); see also
A952. “[S]tate of the art evidence is specific to a particular occupation or industry,
34
and may differ among, for example, automotive or friction products, powerhouse
workers, and Navy engineers.” Matter of New York City Asbestos Litig. (Abrams),
2014 N.Y. Slip Op. 31893, 2014 WL 3689333, at *3 (Sup. Ct., N.Y. Cnty. July 18,
2014). Here, the plaintiffs were in different industries, and the jury heard two sets
of state-of-the-art evidence. Compare A952 (charging jury that “Mr. Dummitt
contends that based on … state of the art evidence, … Crane … knew or should
have known about the dangers of the release of asbestos fibers during routine
maintenance and repairs on Crane’s valves”), with A972-73 (charging jury that it
“may consider all the evidence you have heard about asbestos and its use in joint
compounds and the state of the art evidence” as to Mr. Konstantin’s claims).
Because each “defendant[] … is obligated to keep informed of scientific and
technical discoveries in its particular field” (A957 (emphasis added)), the state of
the art evidence adduced in the two cases was necessarily different, and
consolidation thus presented no efficiencies for this type of evidence either.
(b) Different Durations Of Exposure
The First Department also erred in holding that consolidation was warranted
merely because “both plaintiffs’ decedents’ exposure periods ended in 1977.” 121
A.D.3d at 244 (A27). The Malcolm court compared the duration of plaintiffs’
asbestos exposure, not the end date, 995 F.2d at 351, because the state of the art as
to asbestos varies over time, see Curry v. Am. Standard, No. 08-CV-10228, 2010
35
WL 6501559, at *2 (S.D.N.Y. Dec. 13, 2010) (no consolidation where “the
variation between the degree and duration of Curry and Gitto’s asbestos exposure[]
would likely require presentation of different, complex evidence in each case”).
Here, duration varied dramatically: Mr. Konstantin claimed exposure for two
years at TLC’s sites (A287), whereas Mr. Dummitt was exposed for approximately
fifteen years (see supra, at 8). Mr. Konstantin’s relatively short duration of
exposure also supported a causation defense (A571-72)—a defense Crane did not
raise. See Matter of New York City Asbestos Litig. (Barnes), 2008 N.Y. Misc.
LEXIS 8397, at *12 (severing plaintiff in part due to different time periods of
exposure).
(c) Different Diseases
In rejecting the argument “that the difference in the types of mesothelioma
the plaintiffs’ decedents had compels separate trials,” 121 A.D.3d at 244 (A27), the
First Department erred because different types of mesothelioma are “distinct
disease[s]” that raise distinct issues of proof. See Matter of New York City
Asbestos Litig. (Adler), 2012 N.Y. Misc. LEXIS 3828, at *27. The court in Adler,
for example, held that “the most important” reason why it refused to consolidate
one plaintiff’s action with several others “is that she is the only plaintiff …
suffering from the disease of peritoneal, and not pleural mesothelioma.” Id. at *26.
36
Here, Mr. Konstantin’s and Mr. Dummitt’s different diseases raised different
issues as to causation. Pleural mesothelioma, which affects the lining of the lungs,
has occurred in tens of thousands of persons, and asbestos is a well-documented
cause of that disease. A196; see also Matter of Seventh Judicial Dist. Asbestos
Litig., 191 Misc.2d at 631 (mesothelioma in lining of lungs is a “signature disease
for asbestos exposure”) (quotation marks omitted). Thus, Crane did not contest
whether Mr. Dummitt’s pleural mesothelioma was caused by asbestos; rather, it
argued that exposure to Crane products (as opposed to exposure to other
defendants’ products) was not a substantial cause of the disease. A173-74.
By contrast, mesothelioma of the tunica vaginalis (the lining of the testicles)
is extremely rare, with only 223 cases recorded in the medical literature, some of
which were in children who were never exposed to asbestos. A561, A1204. TLC
accordingly advanced the case-specific defense that (i) asbestos does not cause
mesothelioma of the tunica vaginalis (A174, A879); and (ii) even if it could, the
exposure would have to exceed greatly the duration and quantity of the exposure
Mr. Konstantin experienced (A571). The consolidation of Mr. Konstantin’s case
with a case involving a “signature” mesothelioma prevented TLC from effectively
presenting this argument to the jury.
Moreover, Mr. Konstantin’s and Mr. Dummitt’s different diseases required
the jury to consider and keep track of different operations, medical procedures, and
37
courses of treatment, as well as different impacts on each plaintiff’s lifestyle.
Konstantin, 37 Misc.3d 1206(A), at *15-16 (A91-92); Matter of New York City
Asbestos Litig. (Dummitt), 36 Misc.3d 1234(A), at *22.
(d) Different Health Statuses
The First Department also erred in holding that the fact “that Dummitt was
too ill to appear in court does not confer upon him a different ‘status’ from
Konstantin” because “[t]here is no evidence that the jury was aware that his
physical condition was dire at the time of trial, so that it would have conflated his
condition with that of the less ill Konstantin.” 121 A.D.3d at 244 (A27).
Plaintiffs’ counsel in fact told the jury in the opening statement: “Mr. Dummitt is
home. He is too sick to be here.” A183. The jury thus was clearly aware that Mr.
Dummitt was far sicker than Mr. Konstantin at the time of trial. And Mr.
Dummitt’s absence “present[ed] the jury with a powerful demonstration of the fate
that await[ed]” Mr. Konstantin. Malcolm, 995 F.2d at 351-52 (quotation marks
omitted) (discussing reasons not to consolidate of cases involving living and
deceased plaintiffs).
(e) Different Defendants, Counsel, And Witnesses
The First Department also failed to consider several other substantial
differences between the cases, which resulted in virtually no judicial economy
arising from the consolidation, including the lack of overlap of defendants or their
38
respective counsel. A161-62. The First Department also did not consider that of
the seventeen fact and expert witnesses, at best, only three offered testimony
purportedly relevant, in part, to both cases. A1158-59. Even the trial judge was
confused as to what expert testimony applied to which case. A944-45 (court told
jury it could not “at this point make these determinations” as to in which case the
expert testified).
2. The Cases Have No Common Issues Of Law
Nor were there any common issues of law that could be more efficiently
raised in a joint trial than individual trials. The First Department acknowledged
that the two cases were predicated on different legal theories (workplace liability
versus product liability), but nonetheless held that common legal questions
predominated because “both theories ultimately required a showing that defendants
failed to act reasonably in permitting the men to become exposed to asbestos.” 121
A.D.3d at 245 (A28). This extreme generalization of the parties’ claims renders
meaningless any inquiry into the existence of common issues of law under CPLR
602(a). Virtually any two causes of action can be said to involve common legal
issues if discussed at a high enough level of generality; every asbestos case asks
whether a defendant should have taken steps to prevent exposure to a plaintiff.
Although legal theories need not be identical in order to give rise to a
common issue of law, consolidation is unwarranted when, as here, the parties’
39
various legal theories do not “present similar legal issues of liability.” Harby
Assocs., Inc. v. Seaboyer, 82 A.D.2d 992, 993 (3d Dep’t 1981) (affirming denial of
joinder of actions for conversion with those sounding in negligence); see also Cnty.
of Westchester v. White Plains Ave., LLC, 105 A.D.3d 690, 691 (2d Dep’t 2013)
(affirming denial of consolidation of actions for breach of contract and legal
malpractice); Matter of New York City Asbestos Litig. (Capozio), 22 Misc.3d
1109(A), at *5 (declining to consolidate action implicating federal law issues with
action governed by state law because it “could prove … confusing for the jury to
sort out the varying elements”) (quotation marks omitted); Matter of New York
City Asbestos Litig. (Adler), 2012 N.Y. Misc. LEXIS 3828, at *29 (“Confusion
among jurors is very likely to occur between the elements of a [Federal Employers’
Liability Act] claim … and the similar but distinct elements of the strict products
liability claims.”); Curry, 2010 WL 6501559, at *2 (“[P]arsing dissimilar, and
potentially contradictory, defenses may result in considerable delay and jury
confusion, thus further mitigating against the potential efficiency of
consolidation.”).
The cases here present no common questions of law because none of the
legal issues could be or were resolved in a common manner. Mr. Dummitt’s
claims were governed by product-liability principles (A951-53), and required the
jury to consider whether a valve manufacturer failed to exercise reasonable care in
40
not warning against latent dangers of which the manufacturer knew or should have
known resulting from foreseeable uses of its non-asbestos containing product with
other components containing asbestos (A954-58); the knowledge with which the
manufacturer could reasonably be charged, given that it “possess[ed] all of the
knowledge … which could have been possessed by an expert,” including all
information “available concerning the dangers of the use of the defendant’s
product with asbestos” (A956-58); and whether the manufacturer’s failure to warn
contributed substantially to plaintiff’s injury (A960-61).23 Crane also asserted a
government contractor defense. A893.
In contrast, Mr. Konstantin’s claims against TLC were based on negligence
and Section 200 of the New York Labor Law. A969-71. Unlike a manufacturer,
TLC had no duty to provide warnings and was not presumed to be an expert
regarding the products that its many subcontractors brought onto its premises.
None of the primary issues for Mr. Konstantin’s claims overlapped with the issues
presented by Mr. Dummitt’s claims. Rather, Mr. Konstantin’s claims required the
jury to consider: whether the joint compound used at two worksites actually
contained asbestos (A970, A972); whether TLC knew or should have known that
23 Because Crane itself did not manufacture the asbestos-containing product
at issue, Mr. Konstantin’s allegations below that Kaiser Gypsum, U.S. Gypsum,
and Georgia-Pacific manufactured joint compound with asbestos (A970, A1119)
were not similar to Mr. Dummitt’s allegations against Crane.
41
the particular joint compound that the subcontractors used contained asbestos
(A973-74); whether exposure to asbestos was a cause of Mr. Konstantin’s
mesothelioma (A974-75); whether TLC controlled the means and methods of the
subcontractors in performing their work (A975); whether TLC knew or reasonably
should have known of the risk to bystanders of sanding the compound and
sweeping the resulting dust (A976); and whether TLC’s negligence was a
substantial factor in causing Mr. Konstantin’s mesothelioma (id.).
The divergent legal issues in these cases thus provide no basis for trial
consolidation.
3. The First Department Wrongly Placed The Burden On TLC To
Disprove The Existence Of Common Issues Of Law Or Facts
The First Department also erred in placing the burden on TLC to show that
the actions had no common issues of law or fact. As this Court has held, the party
seeking consolidation must demonstrate “a plain identity between the issues
involved in the two controversies.” Matter of Vigo, 26 N.Y.2d at 161; see also
Gibbons, 22 A.D.2d at 997 (similar).
Here, however, rather than keeping the burden on Mr. Konstantin, the First
Department found that “TLC has failed to articulate why the differences in the
environment and job duties had such an impact on the manner of exposure that it
was necessary for the evidence of exposure to be heard separately.” 121 A.D.3d at
244 (A27) (emphasis added). The court faulted TLC for “point[ing] to no medical
42
evidence in the record suggesting why the differences between pleural and
peritoneal types of mesothelioma are sufficiently significant,” id. (A27)—failing to
even mention the stark difference between the relevant diseases here, Mr.
Dummitt’s pleural mesothelioma and Mr. Konstantin’s exceedingly rare
mesothelioma of the tunica vaginalis. The court also effectively required TLC to
show why Messrs. Konstantin and Dummitt’s health statuses mattered, rather than
requiring them to show commonalities in their health statuses. Id. (A27).
*****
Because Mr. Konstantin’s and Mr. Dummitt’s actions against two unrelated
defendants involved different types of exposure at different worksites over
different time periods, resulting in different diseases, under different legal theories,
there were no common issues of law or fact that could support consolidation.
Thus, no efficiencies were secured by this joint trial of two very disparate cases,
and instead the jury had to absorb a vast amount of complex yet dissimilar
information over the length of substantially drawn-out proceedings that lasted far
longer (eight weeks) and that were considerably more complicated than if the cases
had been tried individually.
C. Consolidation Prejudiced TLC’s Substantial Right To A Fair Trial In
Violation Of CPLR 602(a)
Even if there were common issues of fact or law that could support
consolidation here (there were not), the goals of “judicial economy” and “[t]he
43
benefits of efficiency” cannot “be purchased at the cost of fairness.” Malcolm, 995
F.2d at 350. In the two cases consolidated here, which involve different
defendants, different plaintiffs, different worksites, different occupations, different
products, different durations of exposure, different diseases, different health
statuses, and different questions of law, there was “an unacceptably strong” risk of
prejudice to TLC’s substantial right to a fair trial.
1. Prejudice Resulting From Jury Confusion
Consolidation creates an impermissible risk of prejudice to a substantial
right where it “might prove too unwieldy” because the cases involve “separate
incidents and separate claims by the plaintiffs.” Stephens v. Allstate Ins. Co., 185
A.D.2d 338, 339 (2d Dep’t 1992); see also Brown v. Brooklyn Union Gas Co., 137
A.D.2d 479, 480 (2d Dep’t 1988) (though “actions involve a common question of
law or fact,” they also “involve many dissimilar issues which may confuse the
jury,” such that consolidation would be “unduly prejudicial”) (quotation marks
omitted). In such instances, “the resulting and cumulative prejudice to the
defendants by permitting the jury, in one trial, to determine the multiple claims at
issue …, far outweighs the benefit derived from the conduct of a joint trial.”
Glussi, 276 A.D.2d at 587 (citations, ellipses, brackets, and quotation marks
omitted); see also Skelly, 309 A.D.2d at 918 (An “unwieldy” “joint trial” “will
result in jury confusion and prejudice the rights of the … parties to a fair trial.”);
44
Matter of New York City Asbestos Litig. (Altholz), 11 Misc.3d 1063(A), at *3
(severing case where “possibility for such confusion could greatly prejudice”
defendants).
The issue in a post-trial review of a consolidation order is whether “there is
an unacceptably strong chance” that prejudice infected the trial. Malcolm, 995
F.2d at 352 (citing Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 907 (4th Cir.
1983) (reversing consolidation where possibility that prejudice arose from
improper consolidation “simply could not be eliminated”)). The trial must be
evaluated as a whole, including whether protective measures like curative
instructions and note-taking by jurors relieved any confusion. See Malcolm, 995
F.2d at 352 (notwithstanding “the number of precautions the district court took to
assure that each case maintained its identity … the sheer breadth of the evidence
made these precautions feckless in preventing jury confusion”); id. (citing Cain v.
Armstrong World Indus., 785 F. Supp. 1448, 1455 (S.D. Ala. 1992) (“It is evident
(unfortunately, in hindsight) that despite all the precautionary measures taken by
the Court … the joint trial of such a large number of differing cases both confused
and prejudiced the jury.”)).
Here, “there is an unacceptably strong chance” that the jury was confused
and thus that consolidation unfairly prejudiced TLC. The trial court itself
apologized multiple times to the jury for the fragmented and “piecemeal
45
presentation” of evidence (A374-75), and correctly described the trial as “very,
very disjointed” (A384). For example, the trial court’s preliminary remarks
covered, in order, Mr. Dummitt’s failure-to-warn theory (A172-73), Mr.
Konstantin’s failure-to-maintain-a-safe-workplace theory (A173), Mr. Dummitt’s
causation theory (A174), Mr. Konstantin’s causation theory (A174-75), a
clarification of Mr. Dummitt’s causation theory (A174), and a clarification of Mr.
Konstantin’s causation theory (A174-75). Testimony was presented out of
sequence throughout the trial. For example, Dr. Jacqueline Moline, an expert
witness for both plaintiffs on certain issues and only for Mr. Dummitt on other
issues, began her testimony on Day 3 of trial (A208), and was followed by Mr.
Dummitt’s video deposition (A229), Mr. Konstantin’s direct testimony (A232), the
testimony of Mr. Dummitt’s treating oncologist, Dr. Gerrit Kimmey (A375), then
another portion of Mr. Dummitt’s video deposition (A384), then, after days of
testimony about Mr. Dummitt’s pain and suffering, Mr. Konstantin resumed the
stand (A389), and after days more of other witnesses, Dr. Moline continued her
testimony on Day 9 of trial (A648).
Additionally, the plaintiffs’ attorney mixed together the evidence from the
two cases in closing (A944-45), and the trial court stated that it was unable to
guide the jury as to which witnesses testified in which case:
[T]o the extent [another expert] Mr. Hatfield testified in
connection with both cases, you may consider his
46
testimony in connection with both cases. If there was
only evidence presented in one case, the evidence refers
to that case only. I cannot at this point make these
determinations.
A945. The trial court also confused the elements of the two actions. In its opening
remarks, for example, the court acknowledged that it erred in telling the jury that
“as to each plaintiff you would have to determine whether exposure to asbestos in
products of the defendants caused the plaintiff to develop mesothelioma.” A175-
76. Because TLC was sued in its alleged capacity as successor to a general
contractor, the court had to clarify that its statement regarding “products of the
defendants” “refer[red] only to Mr. Dummitt, it does not refer to Mr. Konstantin.”
A176.
In declining to find prejudice from these cumulative errors, the First
Department did not disagree that the trial was unusually disjointed, but discounted
the confusion as an irrelevant and inevitable consequence of budgetary constraints.
121 A.D.3d at 245 (A29). But the operative question is whether a risk of prejudice
to a substantial right exists that neither defendant would have confronted had its
case been tried separately, and nothing about budgetary considerations answers
that question. Absent consolidation, the presentation of evidence would have been
markedly different, and thus, as the disjointed trial record indicates, there was “an
unacceptably strong chance” of jury confusion that prejudiced TLC’s substantial
right to a fair trial. See Malcolm, 995 F.2d at 352.
47
The First Department also opined that the jury’s verdicts in the two cases
demonstrated the jury’s “understanding of the different nuances in the two cases,”
noting that the jury had allocated TLC and Crane different proportions of liability
and found different life expectancy and damages for each plaintiff. 121 A.D.3d at
245-46 (A30). Just the opposite is true. The skewed allocation of liability (76% to
TLC and 99% to Crane, neither of which manufactured the asbestos-containing
products at issue),24 as well as the sheer magnitude of the verdicts ($19 million and
$32 million)—which the trial court reduced by almost 70%—in fact strongly
suggest that “the jury thr[ew] up its hands in the face of a torrent of evidence.”
Malcolm, 995 F.2d at 352.
2. Prejudice Resulting From Unfair Bolstering Of Claims
The First Department also failed to consider whether consolidation of two
asbestos-related cases had improperly bolstered Mr. Konstantin’s claims, as any
fair review would have required. A defendant sustains prejudice to a substantial
right where “[p]resentation of both claims to the same jury would tend to bolster
each claim, to defendants’ disadvantage.” Bradford, 110 A.D.2d at 966; accord
Tarshish v. Assoc. Dry Goods Corp., 232 A.D.2d 246, 247 (1st Dep’t 1996). That
is particularly so where, as here, a case against a non-manufacturer (TLC) is
24 For the reasons set forth in the Appellant’s Brief in Dummitt v. A.W.
Chesterton, APL-2014-00209 (N.Y. filed Sept. 29, 2014), at 66-77, the First
Department’s affirmance of the liability allocation and the recklessness finding are
erroneous. See also infra, at 48-50.
48
consolidated with a case against a manufacturer whose products are at issue
(Crane). See, e.g., Matter of New York City Asbestos Litig. (Altholz), 11 Misc.3d
1063(A), at *4 (declining to consolidate claims against premises owner outside the
chain of production and distribution because “evidence of liability on the part of
manufacturers, contractors and product distributors could easily ‘splash’ on this
defendant and unduly prejudice this defendant’s right to have a fair and impartial
trial”). The outsize verdicts here—totaling $51 million—and the skewed
allocation of fault evidence exactly the kind of prejudicial bolstering of plaintiffs’
claims that results from improper consolidation.25 As the publicly available data
collected above shows (see supra, at 27), the $19.55 million verdict for Mr.
Konstantin substantially exceeded most verdicts in cases tried individually. There
thus was the clear possibility that, absent consolidation, the jury never would have
arrived at such a mammoth verdict for Mr. Konstantin.
3. Prejudice Resulting From The Repeated Recklessness
Charge
Consolidation of two cases in which the jury was wrongly charged on the
issue of recklessness also prejudiced TLC. Recklessness under CPLR 1602(7)
means that a defendant has “intentionally done an act of an unreasonable character
in disregard of a known or obvious risk that was so great as to make it highly
25 As discussed in Point II, infra, moreover, remittitur does not render the
prejudice harmless because, with such an inflated baseline, even the remitted
award deviates materially from what is reasonable compensation.
49
probable that harm would follow and has done so with conscious indifference to
the outcome.” Matter of New York City Asbestos Litig. (Maltese), 89 N.Y.2d 955,
956-57 (1997) (affirming decision to set aside jury finding of recklessness). In Mr.
Konstantin’s case, there was no basis for a recklessness charge because, as the First
Department itself stated, TLC’s general knowledge of the dangers of asbestos
pertained to unrelated fire-proofing material and “did not specifically relate to
asbestos-containing joint compound.” 121 A.D.3d at 248 (A34); see also A1063.
The evidence upon which the First Department relied to purportedly bridge that
gap—a 1972 Tishman Realty & Construction annual report—merely references
U.S. Gypsum as a client of Tishman Realty & Construction, without elaboration of
that relationship (A1034), and thus does not demonstrate “that TLC worked with
U.S. Gypsum … to develop an asbestos-based product” (121 A.D.3d at 248
(A34)). Nor was there a basis for a recklessness charge in Mr. Dummitt’s case.
See Appellant Br. 70, Dummitt v. A.W. Chesterton, APL-2014-00209 (N.Y. filed
Sept. 29, 2014) (recklessness charge improper because “no ‘act’ of Crane Co.’s
caused Mr. Dummitt to be exposed to asbestos”). Yet, the jury was twice
instructed to consider whether the defendants acted with reckless disregard. A963,
A978-79.
Those two erroneous charges created an unacceptable risk that the jury,
primed to look for reckless disregard, would find TLC liable or award substantial
50
damages for reasons untethered to the evidence. This risk, particularly when
coupled with the skewed allocation of liability well in excess of 50% (see supra, at
47; CPLR 1601(1))—resulted in compounding prejudice against TLC.
For all these reasons, new trial is warranted where any evidence against TLC
is heard in a separate trial.
POINT II
CPLR 5501(C) REQUIRES SEARCHING INQUIRY INTO WHETHER
THE $8 MILLION DAMAGES AWARD, EVEN AFTER REMITTITUR,
DEVIATES MATERIALLY FROM COMPARABLE AWARDS
In affirming the $8 million damages award, the First Department erred by
failing to adhere to the requirements of CPLR 5501(c), which directs it to reduce
an award that “deviates materially from what would be reasonable compensation.”
CPLR 5501(c). Independently of the error in the trial consolidation, this error
warrants vacatur and remand to the First Department for it to assess the
excessiveness of the award under the proper standard.26
A. The Legislature Enacted The “Deviates Materially” Standard In CPLR
5501(c) To Keep Pain-And-Suffering Awards In A “Tight Range”
In 1986, as part of a comprehensive tort reform initiative, the Legislature
replaced New York’s common-law shocks-the-conscience standard for excessive
26 This Court should address remittitur even if it rules in TLC’s favor as to
consolidation. The properly remitted amount may be determinative of whether the
parties choose to pursue a new trial.
51
jury awards with the present CPLR 5501(c).27 That statute was intended to serve
as “[t]he ‘natural curbing force’ to check the upward spiral of non-economic jury
awards,” Donlon v. City of New York, 284 A.D.2d 13, 15 (1st Dep’t 2001), by
“‘inviting more careful appellate scrutiny’” than the shocks-the-conscience test,
which the Legislature found to be “an insufficient check on damage awards,”
Gasperini, 518 U.S. at 423 (quoting 1986 N.Y. Laws 2021, Ch. 266, § 1); see also
O’Connor v. Graziosi, 131 A.D.2d 553, 554 (2d Dep’t 1987) (“inten[t]” of 1986
legislation was “to facilitate appellate changes in verdicts”); Newman & Ahmuty,
Appellate Review of Punitive Damage Awards, in Insurance, Excess, and
Reinsurance Coverage Disputes 409 (B. Ostrager & T. Newman eds. 1990) (CPLR
5501(c) designed to “encourage” the Appellate Division to modify excessive
awards); 12 J. Weinstein, H. Korn, & A. Miller, New York Civil Practice ¶
5501.21 (3d 2010) (“[R]eviewing court [under CPLR 5501(c)] is given greater
power to review the size of a jury award than had heretofore been afforded.”).28
27 Under the shocks-the-conscience standard, the Appellate Division
could “not disturb an award unless the amount was so exorbitant that it shocked the
conscience of the court.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 422
(1996) (citation and quotation marks omitted); see also McKinney’s Cons. Laws of
N.Y., Book 7b, CPLR § 5501:10 Appellate Division Review (McKinney’s 2010).
28 See also Executive Memoranda from Mario M. Cuomo, Governor of
N.Y., on approving L. 1986, ch. 682 (July 30, 1986) as reprinted in 1986 N.Y.
Sess. Laws 3182, 3184 (1987) (McKinney) (praising the amended CPLR 5501(c)
because it would “assure greater scrutiny of the amount of verdicts and promote
greater stability in the tort system and greater fairness for similarly situated
52
Two years later, as part of a renewed effort to “foster predictability” of such
awards, Gasperini, 518 U.S. at 429, the Legislature also amended CPLR 5522 to
require the Appellate Division to “set forth in its decision the reasons” it found a
damages award excessive or inadequate, “including the factors it considered in
complying with [5501(c)].” CPLR 5522(b).
Thus, “[t]he ‘deviates materially’ standard, … in design and operation,
influences outcomes by tightening the range of tolerable awards.” Gasperini, 518
U.S. at 424-25 (emphasis added). It requires “New York state courts [to] look to
awards approved in similar cases” by the Appellate Division, Gasperini, 518 U.S.
at 425,29 and permits them to approve only those awards that “fall[] within th[e]
boundaries” set by prior awards for similar injuries, Donlon, 284 A.D.2d at 18.
The “tight[] range of tolerable awards” imposed by prior approved awards for
similar injuries, in other words, functions like “a statutory cap,” except that “the
defendants throughout the State,” thereby “enhanc[ing] substantially the system of
justice in New York State.”) (hereinafter “Cuomo Memorandum”).
29 See Gasperini v. Ctr. for Humanities, Inc., 66 F.3d 427, 430 (2d Cir.
1995) (“[W]e believe that published decisions of the Appellate Division are
generally far better predictors of how the New York Court of Appeals would
decide a question of state law than even a fair number of unpublished proceedings
in the trial courts.”); Gasperini, 518 U.S. at 421 (observing that Second Circuit was
“[g]uided by Appellate Division rulings”); see also New York City Transit Auth. v.
State Div. of Human Rights, 78 N.Y.2d 207, 219 (1991) (Appellate Division must
consider “how [an award] compared with other awards for similar injuries”
approved by the Appellate Division); Reed v. City of New York, 304 A.D.2d 1, 7
(1st Dep’t 2003) (same).
53
maximum amount recoverable is not set forth by statute, but rather is determined
by case law.” Gasperini, 518 U.S. at 429. The influence of outlier awards is
thereby substantially curtailed.30 This “[a]nalysis of appealed verdicts using CPLR
5501(c) is not optional but a legislative mandate.” Donlon, 284 A.D.2d at 16.
Indeed, the purpose of CPLR 5501(c) is to promote consistency in awards,
which also facilitates informed settlement because it enables parties to assess
realistically the amount of likely recoveries if liability is established.31 The reason
for “[e]valuation of prior awards in similar personal injury actions is to ascertain a
consensus of opinion among juries and courts regarding the relation between the
particular injuries and the compensation awarded, to guide the court in resolving an
award’s disputed adequacy, and to achieve fairness and evenhandedness.” Medina
v. Chile Commc’ns, Inc, 15 Misc.3d 525, 531 (Sup. Ct., Bronx Cnty. 2006).
30 Cf. Payne v. Jones, 711 F.3d 85, 94 (2d Cir. 2013) (explaining harm to
society from “judgments awarding unreasonable amounts as damages,” including
that “an excessive verdict that is allowed to stand establishes a precedent for
excessive awards in later cases”).
31 See, e.g., Cuomo Memorandum (harmonizing jury awards would ensure
“greater fairness for similarly situated defendants”); cf. Jennifer K. Robbennolt,
Determining Punitive Damages: Empirical Insights and Implications for Reform,
50 Buff. L. Rev. 103, 162 (2002) (“[T]he possibility of liability for punitive
damages may have an impact on litigation strategy or settlement negotiations”).
54
B. New York Courts Have Not Curbed The Spiraling Pain-And-Suffering
Verdicts In Asbestos Cases
New York courts have not been following CPLR 5501(c)’s “legislative[]
mandate[] to keep compensation reasonable and uniform.” Donlon, 284 A.D.2d at
18; see generally Richard J. Montes & David A. Beatty, Are the Appellate Courts
Deviating From the “Deviates Materially” Standard of Review?, 77 Alb. L. Rev.
13 (2013-14) (hereinafter “Are the Appellate Courts Deviating?”). This is
particularly true in the asbestos context, where the average NYCAL verdict has
more than doubled in ten years from approximately $7 million in 1995-1999 to
over $15 million in 2010-2014, now nearly three times the combined average of
every other U.S. jurisdiction—without any meaningful correction through CPLR
5501(c). These increases in NYCAL damages awards run counter to the fact that
defendants in the latest waves of asbestos litigation are increasingly removed from
the actual production and sale of products formulated to contain asbestos. See,
e.g., Matter of New York City Asbestos Litig. (Tancredi), 194 Misc.2d at 219
(distinguishing “traditional” asbestos defendants from, e.g., “downstream” users or
distributors); see also supra, at 23.
Although the Appellate Division is specifically charged with the
responsibility of reducing awards that deviate materially from reasonable
compensation, it often resolves remittitur with a single summary sentence. See,
e.g., Penn v. Amchem Prods., 85 A.D.3d 475, 477 (1st Dep’t 2011) (stating only
55
that “[t]he damage awards deviate from what would be reasonable compensation to
the extent indicated (CPLR 5501[c])”); Matter of New York City Asbestos Litig.
(Marshall), 28 A.D.3d 255, 256 (1st Dep’t 2006) (stating only that “we find that
the damages awards deviate materially from what is reasonable compensation
under the circumstances (CPLR 5501(c)) to the extent indicated”); Lustenring v.
AC&S, Inc., 13 A.D.3d 69, 70 (1st Dep’t 2004) (stating only that “[t]he damages
do not deviate materially from what is reasonable compensation under the
circumstances (CPLR 5501(c))”); Matter of New York City Asbestos Litig.
(Brooklyn Naval Shipyard Cases), 191 A.D.2d 351, 351 (1st Dep’t 1993) (stating
only that “[t]he five additurs resulted in awards that do not deviate materially from
what would be reasonable compensation (CPLR 5501(c)), and were not abuses of
discretion” (internal citation omitted)); see also Are the Appellate Courts
Deviating? at 32-33.
As a consequence, most of the case law regarding CPLR 5501(c) in asbestos
cases emanates from trial courts, more specifically, NYCAL trial courts. This
practice is troubling for at least two reasons:
First, NYCAL trial judges have been reviewing verdicts from consolidated
asbestos trials, which are artificially inflated above verdicts from individual trials
(see supra, at 27). This skews the pool of available verdicts that future courts look
to under CPLR 5501(c) to determine what constitutes reasonable compensation
56
and a material deviation. Cf. Payne v. Jones, 711 F.3d 85, 94 (2d Cir. 2013). Even
where a verdict is remitted, the higher starting figure will very likely have driven
the adjusted damages upwards.
Second, reliance on NYCAL trial judges to self-police their own jury awards
for nearly three decades is contrary to the plain language and intent of CPLR
5501(c) that the Appellate Division serve as an independent check. See supra, at
51.
It is thus unsurprising that pain-and-suffering damages awards in asbestos
cases have continued to spiral and that this upward trend shows no sign of abating.
See supra, at 27; see also Matter of New York City Asbestos Litig. (Peraica), 2013
N.Y. Slip Op. 32846(U), 2013 WL 6003218, at *13 (Sup. Ct., N.Y. Cnty. Nov. 6,
2013) (remitting $35 million award for two years of pain and suffering only to $18
million—$750,000 per month). This Court’s guidance regarding CPLR 5501(c) is
thus needed now more than ever to curb soaring damages and to ensure some
measure of predictability and fairness.
C. The First Department Did Not Comply With CPLR 5501(c) In
Approving An Award That Deviates Materially From Reasonable
Compensation
Notwithstanding its acknowledgement that portions of the $8 million
damages award here were “unprecedented” (121 A.D.3d at 255 (A47)), the First
Department affirmed that award without analyzing any awards approved in similar
57
cases or even addressing the “deviates materially” standard in CPLR 5501(c). This
analysis was both insufficient and incorrect as a matter of law.
1. The $4.5 Million Award For Past Pain And Suffering Deviates
Materially From Reasonable Compensation
In affirming the $4.5 million for 33 months of past pain and suffering, the
First Department stated that the award “equates to $136,000 per month,” which it
noted was within the range of prior pain and suffering awards that TLC had
identified in its briefing. 121 A.D.3d at 255 (A46). Although the math is
technically correct, the First Department erroneously assumed that Mr. Konstantin
suffered uniformly throughout the 33-month period for which he was awarded
damages for past pain and suffering. The undisputed record shows, however, that
Mr. Konstantin’s suffering beginning around October 2008 (A372, A461) differed
both in degree and kind from the pain he endured after his mesothelioma diagnosis
in January 2010. Compare A372, A462-63, A472, with A475; see also 37 Misc.3d
1206(A), at *15-16 (A91-93).
In treating the harm here as uniform throughout the 33-month period,
moreover, the First Department acted contrary to its mandate under CPLR 5501(c)
to identify an appropriate analogue for Mr. Konstantin’s pain and suffering in order
to determine what constitutes reasonable compensation. See also CPLR 5522(b).
Restated in terms of monthly compensation, even if the court remitted the first 13
months of past pain and suffering from $136,000 per month to, for example, a still-
58
substantial $100,000 per month, damages for the remaining 20 months would
average approximately $160,000, easily eclipsing the First Department’s most
recent remittitur decision in the asbestos context, Penn, 85 A.D.3d at 476-77
(remitting pain and suffering damages to $115,000 per month for 13 months of
past pain and suffering).32 The First Department did not seek to differentiate the
circumstances here from the circumstances in Penn or any other case.
2. The “Unprecedented” $3.5 Million Award For Future Pain And
Suffering Deviates Materially From Reasonable Compensation
The First Department likewise erred in affirming the $3.5 million award for
18 months of future pain and suffering, which, at $194,444 per month, is both
“unprecedented” (as the First Department acknowledged) and “unparalleled” (as
Mr. Konstantin conceded below). While the court relied on monthly averages to
sustain the $4.5 million award for past pain and suffering, it ignored those same
guideposts in upholding the $3.5 million award for future pain and suffering. Such
an “unprecedented” amount of damages would necessarily require “unprecedented
facts” to avoid material deviation from reasonable compensation, but the First
Department stated only that Mr. Konstantin “suffered two mesotheliomas, in his
32 In Penn, the plaintiff was found to have developed mesothelioma from
exposure to asbestos-containing dental products. The First Department remitted
the $3.65 million award for 13 months of past pain and suffering to $1.5 million
(approximately $115,000/month) and the $10.9 million award for 12 months of
future pain and suffering to $2 million (approximately $166,000/month), for an
average award of $140,000 per month. See 85 A.D.3d at 476-77.
59
testes and chest, tantamount to twice as much pain and suffering.” 121 A.D.3d at
255 (A47). But metastasis is not unusual in cancer progression.33 Affirmance of
an unprecedented award based on no more such a common attribute does not
comport with the “deviates materially” standard.
3. The $8 Million Award For All Pain And Suffering Deviates
Materially From Reasonable Compensation
The same result would obtain even if, unlike the First Department (see 121
A.D.3d at 255 (A47)), this Court were to consider only the total amount awarded
for pain and suffering, as the $8 million across 51 months would equal $156,862
per month.34 This award is both higher on a per-month basis than Penn, 85 A.D.3d
at 476-77, which remitted pain-and-suffering damages to an average of $140,000
per month over 25 months ($3.5 million total), and for a significantly longer period
than any other mesothelioma-related award of which TLC is aware. The First
Department’s failure to compare the $8 million award here—approximately twice
the average award of cases not tainted by consolidation—to any other pain-and-
suffering award raises serious concerns of fairness and consistency.
33 See Am. Cancer Soc’y, Unlocking the Mysteries of Metastasis (Jan 23,
2013), http://www.cancer.org/cancer/news/expertvoices/post/2013/01/23/
unlocking-the-mysteries-of-metastasis.aspx (“[W]ith upwards of 90% of all cancer
suffering and death associated with metastasis, it is the single most significant
challenge to management of the disease.”).
34 As noted supra, Mr. Konstantin was able to engage in normal activities
during the pre-diagnosis period. But even after diagnosis, Mr. Konstantin played
in fifteen rock band performances well into 2011, more than a year later. A410-20.
60
Finally, the $8 million award cannot be grounded in the facts of Mr.
Konstantin’s case when the trial court remitted both verdicts to the same damages
figure. A searching CPLR 5501(c) analysis of these wholly dissimilar cases could
have not resulted in an identical $8 million pain-and-suffering award in both cases.
For all these reasons, a remand is necessary so that the First Department may
properly evaluate the excessiveness of the $8 million damages award under CPLR
5501(c).
61
CONCLUSION
The First Department’s Decision and Order should be vacated and the case
remanded for new trial, or, at the very least, further remittitur.
Dated: New York, New York
April 24, 2015
Respectfully submitted,
E. LEO MILONAS
DAVID G. KEYKO
ERIC FISHMAN
PILLSBURY WINTHROP SHAW
PITTMAN LLP
1540 Broadway
New York, New York 10036
(212) 858-1000
eleo.milonas@pillsburylaw.com
david.keyko@pillsburylaw.com
eric.fishman@pillsburylaw.com
____________________________
KATHLEEN M. SULLIVAN
SHEILA L. BIRNBAUM
JANE M. BYRNE
WILLIAM B. ADAMS
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
(212) 849-7000
kathleensullivan@quinnemanuel.com
sheilabirnbaum@quinnemanuel.com
janebyrne@quinnemanuel.com
williamadams@quinnemanuel.com
Counsel for Defendant-Appellant Tishman Liquidating Corporation
/s/ Kathleen M. Sullivan