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April20,2017
BY OVERNIGHT FEDERAL EXPRESS- Tel: 518-455-7700
Clerk of the Court
New York Court of Appeals
20 Eagle Street
Albany, New York 12207
Re: In re NYC Asbestos Litig.: Hackshaw v. ABB, Inc., N2 APL-2017-00017
Dear Court of Appeals:
On behalf of plaintiff-appellant, I hereby file this letter brief pursuant to this Court's letter
Order dated April4, 2017, and in compliance with section 500.11 of the Court's Rules of Practice.
Although plaintiff believes that the instant submission establishes the need to vacate the Appellate
Division's Order, plaintiff otherwise objects to section 500.1 1 review because, as shown below, this
appeal involves important and novel constitutional and statutory issues that merit full briefing.
A. Overview
This case arises f.tom Mr. Hackshaw's excruciating and ultimately fatal injuries resulting from
defendant Crane Co.'s ("Crane") reckless distribution of ultrahazardous asbestos-containing
220 LAKE DRIVE EAST, SUITE 210 • CHERRY HILL, NJ 08002 • TEL 856-155- l 115
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2
products without warning [R. 4164 (verdict finding Crane reckless)]. After more than a month of
trial- including overwhelming personal witness and expert testimony and volumes of medical
records [R. 9065-14,885] all demonstrating the unimaginable enormity of Mr. Hackshaw's ordeal-
the juty rendered its verdict in favor of plaintiff. The trial court ordered a new t:t:i.'ll unless p1'l.i.ntiff
stipulated to a 40% .reduction of the verdict. Plaintiff so stipulated, but on Crane's othetwise
unsuccessful appeal the First D epru:tment ordered (again via the new-trial mechnnism) that the sum
deemed reasonable by the trial court itself be slashed by 50%, now leaving a mere 30% of what the
jury deemed teasonable compensation. However, the First Department did not articulate a single
reason for this drastic reduction, but instead, quite the opposite, stated that "a substantial award was
appropriate" given Mr. Hackshaw's "severe and crippling symptoms, as well as tremendous physical
and emotional pain .... " 143 AD3d 485, 486.1
This letter brief first addresses the threshold issue raised by this Court, specifically, the
impact ofCPLR 5615 upon this appeal taken pursuant to CPLR 5601(c). As will be shown,
although this appeal was taken by way of"stipulation for judgment absolute" under Section 5601(c),
plaintiffs right to proceed in this manner is guaranteed io the fu:st instance by virtue of the inviolate
right set forth .in Article VI of the New York State Constitution, at Section 3(b)(3). Although valid
and constitutional when applied as .intended, Section 5615 cannot be applied under the very unusual
present circurnstauces to tmncate, or to render a merely pro forma exercise, plaintifFs Section 3(b)(3)
constitutional right to this appeal. Because Section 5615 is "presumptively constitutional," that
provision must be construed in a manner that is in harmony with the relevant constitutional scheme.
Eaton v. New York Conciliation & Appeals Bd., 56 NY2d 340, 346 (1982).
After thereby demonstrating that plaintiffs right to a full and meaningful appeal does lie,
plaintiff turns to the merits, involving solely questions of law concerning the standard and
methodology used below. This letter brief shows that the Appellate Division's Order entered
October 6, 2016, should be vacated because the Order (1) sub silentio imposes a de facto monthly cap
on noneconomic damages, in violation of the plaintiff's constitutional and statutory rights to a
meaningful jury trial and equal protection of the laws, (2) violates plaintiffs substantive due process
right to a jury determination of damages because the First Department's failure to state reasons or
factors leaves plaintiff unable to make an informed decision with regard to the
constitutionally-required new trial option, (3) fails to comply with the express requirements of the
statutory scheme, enacted .in derogation of the common law, by having f.'liled (a) to assess a
reasonable range of compensatory damages for th.is plaintiff, (b) to analyze what would be a materi.al
deviation from that range, and (c) to provide any reasons o.r facto.rs demonstrating its compliance
with the statute or justifying its reduction of damages; and (4) is further erroneous .in failing to apply
an abuse-of-discretion standard in evaluating the trial court's already-undertaken Section 5501(c)
remittitur exercise.
Indeed, consistent with the evidence in the present case, the court in the mesothelioma case
Hamilton v. Gar~ck, Inc., 96 F. Supp.2d 352 (S.D.N.Y. 2000), emphasized that "[i]t would be difficult to
.imag1ne a more pa.inful descent into death." Id at 356; Jee also RobertJ v. Owenr-Corning Fibe!].ltl.! Corp., 878
So.2d 631, 644 (La. Ct. App., 2004) (also in mesothelioma case, noting that, as is typical, "the pain was a 'ten
out of ten"').
B. Right to a Full and Meaningful Appeal, Notwiths tanding CPLR 5615
The questions raised in this appeal are questions of law and involve the construction of the
New York State Constitution and certain statutory provisions. The threshold issue, however,
concerns the right to obtain this Court's full and meaningful review of the merits of the legal and
constitutional issues.
Section 3(a) of Article VI ("Judiciary") to the New Yo.rk Constitution limits this Court's
jurisdiction "to the review of questions of law," and to review that may touch on factual matters in
highly circumscribed ci_rcumstances not relevant here. Section 3(b)(3) then constitutionally
guarantees that an appeal may be taken to this Court "as of right, from an order of the appellate
division granting a new trial in an action ... where the appellant stipulates that, upon affirmance,
judgment absolute or final order shall be rendered against him or her." N.Y. Const. art. VI,§
3(b)(3). CPLR 5615 is intended to se1-ve a salutary and legitimate constitutional purpose. Because
the language of 3(b)(3), taken in isolation, would appear to broadly authorize appeals, upon
appellant's stipulation to judgment ahsolute, even involving factual matters beyond the parameters
set forth in Section 3(a), Section 5615 intends to render merely pro forma - requiting an automatic
affi.tmance - any such factual appeals falling outside the parameters of Section 3(a) of the State
Constitution.
3
Yet, as literally worded, CPLR 5615 may pennit an unconstitutionally overbroad
construction. Tbis would occur in the present case, were Section 5615 applied to strip appellant of
the right granted under constitutional Section 3(b)(3) to a meanintful appeal. CPLR 5615 must be
construed in harmony with the constitutional provisions just discussed. Toward tbis end, there can
be "no legislative limitation" upon the appellant's right to appeal, guaranteed by the Constitution
under Section 3(b)(3), except as is otherwise jurisdictionally indicated in Section 3(a).2 See Broderick v.
Aaron, 268 NY 260, 263 (1935). Critically, the right made inviolate by constitutional adoption, at
Section 3(b)(3), is necessarily to a full and meaning(11l appeal See Kovcmky 11. Ho11sing & Dev. Admin., 31
NY2d 184, 193 (1972) (indicating that statute that "arbitrarily limit[s] a more extensive right" would
be unconstitutional- this is all the more so where the "more extensive right" is itself guaranteed by
the State Constitution); see generalfy Flowers v. Smith, 115 AD2d 226, 227-28 (4th Dept 1985) (noting
the "constitutional right to meani11lfitl access to the courts") (emphasis added); see also Fuentes v. Shevin,
407 U.S. 67, 80 (1972) ("It is equally fundamental that the right to notice and an opportunity to be
heard must be granted at a meaningful time and in a meaningful manner'') (omitting citation); see
generalfy St. John v. Andrews Inst. for Girls, 192 NY 382, 392 (1908) ("By failing to appeal the right to be
beard is waived").
Per.haps most on point, this Court's majority panel in People v. Thiessen, 76 NY2d 816 (1990),
addxessed the dissenting opinion of the Hon. Joseph W. Bellacosa, to the effect that, "[t)he State
Constitution and implementing statutes sharply limit this court's review power with respect to
2 Notably, as well, Section 3(b)(8) of Article VI, N.Y. Constitution, authorizes the Legislature
to "abolish an appeal to the court of appeals as of right" solely with regard to the particular appeals from a
final judgment refe.r:enccd in Section 3(b)(1). The constitutional provisions provide no authorization for any
cuzta.ilment of appdlate rights flowing from Section 3(b)(3).
4
factual and sentencing matters." Id. at 820. The Thiessen majority countered that, "[u]nquestionably,
this court has jurisdiction to review the proptit!J of the legal standard employed. . . . Any discussion of the
trial court's discretionary powers ... is whoi!J imlcvant to this legal isme because the fact that the
sentencing court exercised its discretion in its application of this euoneous legal standard does not
insulate the issue from our review nor preclude us from taking approp.tiate corrective action!' Id. at
818 n.1 (emphasis added).
If applied literally in the present case, CPLR 5615 would truncate plaintiff's constitutional
right to a full and meaningful review by this Court, and effectively relegate plaintiff's appeal to pro
forma status by requi.thtg automatic, nonsubstantive affirmance. See generai!J Candarini v. Attomry Gen.,
369 F. Supp. 1132, 1137 (E.D.N.Y. 1974) ("[m]ere projormd' compliance with a constitutional
guarantee "will not suffice"); Granados 11. Rodrig;tczEstrada II, 24 P.R Offic. Trans. 410, 449, 1989
WL 607270 (1989) (noting that although constitutional rights may be regulated in certain ways, "the
price to pay cannot be a jittitiom and pro jornm proceeding, and, hence, uncon.rtillttiona!') (court's
emphasis); Forbes v. Trigg, 976 F.2d 308,319 (7'h Cir.1992) ("review must be meaningful. and not
merely pro formd') (omitting citation). Accordingly, plaintiff retains the right to obtain this Court's
full and meaningful review of the merits of the strictly legal issues raised herein.
C. Plaintiff's Constitutional Right to a Jury Trial on Damages
The Constitution of the State of New York mandates that "[t]rial by jury in all cases in
which it has heretofOie been guaranteed by constitutional provision shall remruo inviolate forever."
N.Y. CONST. a.rt. I,§ 2; accord CPLR 4101 (prescribing that, unless waived, "the issues of fact shall
be tried by a jury [in] an action in which a party demands and sets forth facts which would permit a
judgment for a sum of money onJy''); see Stephen T. Clark v. James Brooks, 26 How. Pr. 285, 286 (N.Y.
1864) (Cardozo, J.) (explaining that trial by jury is "a favorite and a favored part of our judicial
system. The semblance of an encroachment upon it is justly viewed with distrust and alarm").
Moreover, "[iJn all cases where there is a right to trial by jury there are two elements which
necessarily enter into a verdict for the plaintiff: (1) The .tight to recover. (2) The amount of the
recovery. It is as much the .right of a Qitigant] to have a jury assess the damages . .. as it is to have
the question of ... liability determined by the same body." Ives v. Soutb Btif/a/o Ry. Co., 201 NY 271,
292 (1911). Nor is the inviolate constitutional right to a trial by jury satisfied when the jw:y's tole is
rendered artificial, perfunctory or meaningless. As this Court has affirmed, "[p]laintiff's right to a
meaningful jury trial [is] guaranteed by our State Constitution .... " T reybal/ v. Clark, 65 NY2d 589,
590 (1985) (emphasis added).
The statutory scheme permitting review of damages awards aims at saftg11at-di1Ig the litigants'
constitutional jury trial .rights, by prescribing strict terms and n1les of ~nalysis and transparency that
must be adhered to by the Appellate Division. Cf. 0 'Con11or 11. Papert.ria11, 309 NY 465, 472 (1956).
In this way, any reduction of damages accomplished by means of a new trial order, pursuant to
CPLR. 5501 (c), must remain sensitive to the fllndamental right of a jury trial on damages, must not
effectuate a discriminat01y remittitur policy that imposes a de facto compensatory cap as to one
class of litigants, and must not render the exercise of this right artificial, a mere formality, or an
exercise in futility. When the Appellate Division fails to comply with its legislatively mandated task
of transparently articulating the "reasons" and "factors" underlying its remittitur exercise, CPLR
5522(b ), its new trial option is rendered ineffectual and illusory.
New York•s statutory scheme for judicial review of damages was codified in 1986 in
derogation of the common law, at the CPLR sections just referenced. Lauria v. New York City Dep't
ojEnvtl. Protection, 156 Misc.2d 31, 32 (NY App. Tenn, 2d Dep't 1993) ("the standard of review
evolved through the common law as to whether a verdict is excessive or inadequate has been that it
'shocks the conscience' of the cow:t . . . . The legislature changed the standard in regard to the
appellate division in 1986").
5
The First Department's decisions in the instant case, and in a number of other, recent
appeals, make evident that, in undertaking a remittitur analysis in an asbestos case, the Court is now
tacit!J proceeding by considering solely the duration of plaintiff's period of pain and suffering and
applying a .fi.xt:u :tuonthly multiplier cap. The Court singles out asbestos cases for imposition of the
monthly, fixed multiplir.r cap, at a level that is substantially less than amounts that have been allowed
in certain other non-asbestos cases (if converted to a monthly sum), and in amounts that are far less
than what juries, and often trial judges, have consistently deemed reasonable. Whereas the duration
of plaintiffs suffering is fixed in time, were the Appellate Division to properly consider and
articulate other factors, the plaintiff would then be in a position to detennine whether any further
evidence exists - upon review of all available testimony and the multitude of medical documents -
to meet those considerations in a new trial. This meaningful opportunity to decide whether to make
a new trial election is constitutionally required, and at the heart of the plaintiff's substantive due
p.tocess right to a jury trial.
Significantly, it has been the First Department's recent practice to proceed in a
constitutionally and sta~torily appropriate manner only when the compensatory damages amount
under review - either as rendered by the jury or as already reduced by the trial court - has been be/Qw
its pre-determined de facto cap amount. E.g., In reNew York CifYAsbeJios L.itig.: Ko11slanli11 v. 630
Third Ave. Auoc./Dummilt v. A. LEv. Cbeslertofl, 121 AD3d 230, 255 (1st Dept 2014), a.ffd, 27 NY3d
1172 (2016). The First Depati:m.ent is aware of, ~nd capable of complying with, the statutorily
.required mechanism for reviewing damnges. Indeed, .in doing so in Katulanlin, the Court's opinion
made clear that the monthly pain and suffering compensatory amounts for Mr. Konst:mtin fell short
of its arbitrary cap. See Konstantin, 121 AD3d 230, 239 (explaining t:lL1.t award, upon the trial court's
remittitur order, of "$4.5 million fo.r past pain and suffering and $3.5 million for future pain and
suffering ... broke down to about $157,000 per month based on Konstantin's 33 months of past
pain and suffering and (likely) 18 months of future pain and suffering").
D. Institutional Context of Plaintiff's Legal. Statutory and Constitutional Claims
Beginning about 2011, the Appellate Division, First Department, began to use Section
5501 (c)'s remittitur mechanism as a means of imposing the artificial cap, as just referenced, on the
compensatory sums given to victims of asbestos exposure. Although the Court then commenced
cutting damages to levels at which the plaintiff could no longer be made whole, the instant appeal
6
concerns solely the standard used by the First Department- the tacit duration-only standard- and its
methodology- capping damages for victims of asbestos exposure, and only for that class of plaintiffs,
at $250,000 per month of suffc.cing albeit without articulation of any factors or reasons, in blatant
violation of CPLR 5522(b).3
In the asbestos-related case Penn v. Amchem Products, 85 AD3d 475 (ln Dept 2011), the
Appellate Division reversed the trial court's ruling setting aside the verdict. However, it then
reduced the twenty-six months pas~ pain and suffering award by nearly 60%, from $3,650,000 to
$1,500,000, and reduced Mr. Penn's expected one year of future pain and suffering damages award-
the pc.r.iod approaching death always being characterizing by extraordinarily devastating suffering-
by a full82%. Id. at 476. The Court did not, however, cite a single factor or reason explaining or
justifying that drastic evisceration of the compensatory amount.
In Konstantin, in 2014, the Appellate Division justified its ruling sustaining the trial court's
tetnittitur exercise by noting that, as reduced, "[t]he award broke down to about $157,000 per
month based on Konstantin's 33 months of past pain and suffe.ring and Qikely) 18 months of future
pain and suffering." 121 AD3d at 239. In its appeal to this Couxt in Konstanti11, the defendant
claimed that the Appellate Division should have applied a monthly multiplier cap based on the
relatively small amount sustained by the Appellate Division in the Pmn case.4 This Court did not
reach defendant's claim that the Appellate Division should have applied that, or any, particular
monthly multiplier, and rejected the assertion that the statutory scheme "requires the Appellate
Division to expressly compare the damages award in the judgment appealed from with damages
awards in other cases in its written decisiou."5
In the prior decade, the Appellate Division, First Department, had well recognized the
impropriety of applying a duration-only monthly multiplier across the board in cases belonging to an
identifiable class of plaintiffs. In reNew York Asbestos I.itig.: Marshalltl. Johu Crane, Inc., 28 AD 3d 255,
256 (1" Dept 2006) ("Defendant a.rgues that damages for pain and suffering should be calculated on
a per month basis. We .reject this argument"). In that asbestos-related case, the Cow:t relied upon
its prior non-asbestos Decision in Rled v. City of New York, 304 AD2d 1 (1 Jt Dept 2003), wherein the
Court had emphasized that, upon .reviewing damages that had previously been reviewed by the trial
court under the statutory material deviation standard, "the trial court's decision must be accorded
great weight, having had the advantage of observing the witnesses, or absence thereof, their
3 CPLR 5522 is the companion Rule to CPLR SSOl(c), adopted by the Legislaru.re in 1986.
See CPLR 102 (''The civil practice rules ... may be adopted, not inconsistent with the constitution, by act of
the legislature'').
4 Brief for Defendant-Appellant, Konstanlin v. 630 Third Ave. Assocs., APL-2014-00317 (NY Ct.
App., filed Apr. 24, 2015), at 59.
Kon1tantin, 27 NY3d at 1176. In the KonJtanlin appeal, defendant did not set out any
coherent analysis of what tnclbodology the court ought to apply to gauge the "reasonableness" of
compensation, an exercise d1at is statutorily .requiced, and accordingly this Court did not reach that
affirmative issue.
demeanor on the witness stand and impact on the jury." Id. at 7.
Now, on October 6, 2016, the Appellate Division, First Department, issued three decisions
in the asbestos-related litigation, including the instant Decision and Order appealed from. These
decisions collectively made clear that, in total disregard of any factor apart from duration in months
of pain and Sllffering, and in disregard of the jmy's and trial court's determinations of .reasonable
compensation, the Court was s11b sile11tio imposing an across-the-board monthly cap on non-
economic damages .in the amount of$250,000 in any asbestos-related case.
In Peraica 11. A. 0. Smith Water Products Co., 143 AD3d 448 (181 Dept 2016), the jury had
rendered a verdict of $35 million for Mr. Peraica's twenty months past pain and suffering from the
onset of his symptoms until his horrific death. 6 Painstakingly analyzing the grueling factual
circumstances of Mr. Peraica's ordeal - including his "intestinal strangulation, severe ascites, fecal
vomiting" - in the context of relevant legal rulings, the trial court applied CPLR 5501 (c) and CPLR
5522, and granted defendant's motion for a n~w trial unless plaintiffs stipulated, as they then did, to
a reduction in damages to $18 million.7
The Appellate Division in Peraica, however, in the October 6, 2016 Decision, further
drastically and inexplicably reduced th.e Peraicas verdict to $4.25 million [Comp.], 143 AD3d at 449
-an 88% reduction from the jury's determination of what would be reasonable, and a 76% further
reduction from the trial court's own reasonableness detetmi.nation after having presided over the
·trial, and having heard the witnesses and seen the evidence firsthand- amounting to a sum of
$212,000 per month of Mr. Pt!Iaic.:a's suffering. The First Department failed to articulate a single
reason or factor, as required by CPT.R 5522(b), that would warrant or justify its drastic slashing of
the compensatory amount. Exactly as in the present case, the Court did just the opposite, stating
reasons why only "a substantial award was appmpriate in light of the testimony about the e.'ttent of
decedent's suffering," his "severe and crippling symptoms, as well as tremendous physical and
emotional pain," to make plaintiff whole. 143 AD3d at 451.
Also on October 6, 2016, the Appellate Division issued its Decision and Order in In reNew
York Ci!JAsbestos Litig.: Sweberg 11. ABB, Inc., 143 AD3d 483 (1't Dept 2016), wherein the jury had
6 Trus Court may take judicial notice of the fact that, at trial, Dr. Jacqueline Moline testified
7
that Mr. Peraica "first developed symptoms in April 2011" [Peraica, App. Div. Appx., at 3664], and ultimately
succumbed to IUs excruciating disease in December 2012 [id. at 3681, 3686]. See EDm T L. FISCH NEW YORK
EVIDENCE§ l065, p. 603 (2d ed. 1977) ("judid:U notice of proceedings in other courts has been taken wht:n
one or more of the: pacties were the same or the subject matter closely connected") (footnote$ omitted); cf.
Chatea11 Rire Cop. v. E111:/a111: Dev. Ames., 22 AD3d 445,446-47 (2d Dept 2005); Board oJEduc. v. Teachers Asr'11 of
Ut~dmlmm, 60 AD2d 630, 630 (2d Dept 1974) (taking judicial notice of "the pape1-s filed in another :tppeal").
Peraita v. A 0. Smith lJVater Prothlcts Co., Index N!! 190339/2011,2013 WL 6003218 (NY Sup.
Ct., Nov. 6, 2013). It should be noted that, in its October 6, 2016 Decision and Order, the Appellate
Division misstated the .reduced amount as $9.9 million. 143 AD3d at 449. The latter sum, however, was the
amount of the judgment ultimately entered in plaintiffs' favor subsequent to the molding exercise pursuant to
General Obligations Law§ 15-108.
8
rendered a compensatOl'y verdict for Mr. Swebcrg's two years of past pain and suffering in the
amount of $5 million, and -well understanding that a dying asbestos victim's pain and suffering
increases substantially as death approaches- for his expected one and one-half years of future pain
and suffering in the amount of $10 million. Upon post-trial motion practice, the trial court
determined that the jury's past pain and suffering award did not deviate materially from what would
be reasonable compensation, but ordered a new trial unless plaintiffs stipulated, as they then did, to
a reduced future award of $5 million, or 50% of the jury's determination. 8
While not disturbing the verdict for Mr. Sweberg's past pain and suffering, which amounted
to app.ro.x:i.mately $210,000 per month. the Appellate Division nevertheless ordered, again without
any explanation, a new trial on the matter of future damages unless plaintiff stipulated to a further
reduction to $4.5 million, 143 AD3d at 483, 'l}.vingpredrejy $250,000 per month. and barely
accounting for the enormity of a dying asbestos victim's pain and suffering in the final months.
E. The Appellate Division's Ruling in the Present Case
In the present case, also decided on October 6, 2016, the Appellate Divis.ion similarly
showed no deference to either the jury's determination of the sum necessat:y to make plaintiff whole,
or the trial court's review of that deteonination based upon its "superior opportunity to evaluate the
proof and the credibility of the witnesses."9 Upon its review, the trial court bad granted defendant
Crane a new trial unless plaintiff stipulated, as she did, to reduce the award for past pain and
suffering from $10 million to $6 million [R. 50], a full 40% .reduction in the jury's evaluation. The
cot11:t the..te'tl fter entered judgment on March 11, 2015 fR.. 26] .
Upon appeal, however, the First Department modified the judgment by ordering a new t.rial
unless plaintiff stipulates to a reduced award for such past pain and suffering damages of $3 million,
now leaving just 30% of the jury's reasoned amount. Given Mr. Hackshaw's one year of suffering
from the onset of his symptoms, in August 2012, to his death in August 2013, the First Department
thereby once again imposed a duration-only cap of precisefy $250,000 per month on such damages.
As stated, the First Department failed to give any "reasons" or "factors" warranting this
modification, used language that provided reasons that could only justify or explain an additur, and
thereby failed to say one word about why the Court was ordering a reduction of the damages to an
amount equivalent to precisely $250,000 pe.r month.
8 In reNew York Ci!J Asbestos Litig.: Hacks haw/ Sweberg v. ABB, Inc., Index Nos.
190022/13, 190017/23, 2015 WL 246547 (NY Sup. Ct., Jan. 7, 2015).
9 Carterv. Shah, 31 AD3d 1151,1151-52 (4th Dept2006).
9
F. T he Ruling Deprives Plaintiff of H er Fundamental Right to a MeaningtU./ Tuty T rial
For the new trial mechanism to safeguard the constitutionality of the litigant's jury trial right
when it comes to damages, 10 that mechanism must be applied in the jurisprudentially appropriate
manner, with due consideration paid to the "balancing of many factors." Cohe11 v. HalltJJark Card!, 45
NY2d 493, 499 (1978). To afford the jury's determination appropriate deference, to sufficiendy
heed the totality of each particular plaintiff's circumstances, and to render any new trial option
afforded to the litigant a meaningful feature of the judicial review of damages, Rule 5522 requires
that the court reviewing damages pursuant to CPLR 5501(c) "set forth in its decision the reasons
therefor, including the factors it considered in complying with" the reasonableness and material-
deviation prongs announced in Section SSOl(c). CPLR 5522(b). The Coutt cannot properly
abandon a statutorily required methodology, particulru:ly when this methodology is both in
derogation of the common law and intended to safeguard a fundamental constitutional tight.
By singling out one and only one factot for consideration, lHlmely, duration of pain and
suffering, and s11b sileutio imposing a de facto monthly damages cap for a particular class of plaintiffs,
the reviewing court fails to consider the actual evidence of pain and suffering in the case, in violation
of the core requirement of the new trial mechanism. See lf/heekr v. Citizens Tekcoi!J1lJJ111ications Co., 18
AD 3d 1002, 1004 (3d Dept 2005) ("reviewing court must determine whether the evidence on the
whole so preponderates in favor of the losing party that the verdict could not have been reached on
any fair interpretation of the evidence") (omitting internal quotations).
imposition of a de facto damages cap is an arbitrary methodology that accords no deference
to the jut-y's assessment of the evidence. See Eliza beth S. Poisson, Addressing the ImpropriefY of
Stal11fory Caps 011 Pain and SuiferingAvards in the Medical I.iabilifY System, 82 N.C. L. REv. 759, 779
(2004) ("[~ronically, assigning .rigid caps to such an undefined process as that used in determining
pain and suffering awards makes the numbers chosen for these caps [ultimately wholly] arbitrary").
The First Department's approach has become highly problematic; and wholly non-
deferential in relation to the plaintiff's fundamental jury trial right. There is no other context or area
of law in which fundamental rights are dispensed with in such a tacit manner. Although the new
trial mechanism ordinarily renders remittitur a constitutionally permissible exercise, this can only
occur when the court applies an appropriate methodology for evaluating the evidence in the light
most favorable to the nonmoving party, considers the evidence as a whole, and proffers reasons and
factors that justify disturbing the jury's determination, and that thereby provide the plaintiff with a
fair opportunity for detenniniog whether to stipulate to the reduction or opt for a new trial on
damages.11
10 See Dean ·V. Hotel Greenwich Corp., 21 Misc.2d 702, 705-06 (N.Y. Sup. Ct., 1959).
11 Whereas the Appellate Division's application of the remittitur procedure issue typically
evades this Court's review, because a new trial o.rder renders any dctc.onination non final and nonrev:iewable,
this Court now has the unique opportunity to examine the constitutional and statutory difficulties arising
from the practices discussed herein.
10
In the final analysis, it is necessary to reconcile the plaintiffs fundamental right to a
meaningful jury ttial with the safeguards provided by the new trial procedure. These interests
intersect in New York's statutory remittitur scheme. Plaintiff respectfully submits that, by
incorporating the "new trial" .remedy, the CPLR .tcquires application of the new trial standard of
review - namely, asking whether the verdict was contrary to the weight of all the evidence. The
"new trial" reference demonstrate's the Legislature's awareness that a fundamental, constitutional
right is at stake, and in such a case .it is all the more critical that the court reviewing a new trial
determ.ioation "examine the record as a whole but with due deference to the juty's ability to assess
the credibility of witnesses." Lowery v. Jeffirso!l Co11n!J1 Bd. aJEduc., 586 F.3d 427, 432 (6th Cir. 2009);
m gef}(wtii!J MrDut7»0tt tJ. Coffie Beanery, Ltd., 9 AD 3d 195, 206 (1"t Dept 2004) ("it is a settled rule that
a jury verdict should not be set aside as against the weight of the evidence unless the jury could not
have reached its verdict on any fait interpretation of the evidence"); Walker v. Sperry & Hutchinson
Co., 144 Misc.2d 308, 310 (N.Y. Sup. Ct., 1989) (Han. David B. Saxe) (''The right to a jury trial is so
fundamental that a litigant should not be deprived of it except where it is clearly precluded by law'').
G. The First Department's Practice Violates Equal Protection and Due Process
The Appellate Division's tacit cap on damages at $250,000 per month of suffering for one
class of products liability plaintiff, those afflicted with asbestos-related injuries, a cap .imposed in the
instant case, violates plaint:.iffs constitutional .tight to equal protection of the laws. By virtue of a
similar constitutional standard, the cap also violates plaintiffs right to substantive due process.
Non-asbestos-related plaintiffs have not been limited in the same way. For example, in Arias
v. State aJNew York, 8 Misc.3d 736 (Ct. Cbims 2005), ajj'd, 33 AD3d 951 (2d Dept 2006), the
decedent, an inmate at a State correctional facility, ingested an overdose of a prescribed medication,
and was treated in a hospital intensive care unit for thirteen days before succumbing. 8 M.isc.3d at
737. The decedent was brought to the hospital in an unresponsive state and, as the Court of Claims
noted, "there were multiple times on almost every one of the 13 days during decedent's
hospitalization that he was sedated and/ or unresponsive .... " Id. at 739.
Based on totality of those circumstances in Arias, "the court award[ed] $350,000 for
conscious pain and suffering from the period from August 1 to August 13, 1997, prior to decedent's
death." 8 Misc.3d at 740. The Appellate Division declined to rule these damages inadequate, for
thirteen days of pain and suffering, because " the evidence adduced at trial did not preponderate in
favor of a finding that the decedent was aware of his impe~ding death." 33 AD3d at 951.
The noneconomic damages sustained in Arias thus averaged out to $1,050,000 per month,
the only issue being whether this amount was inadequa/e. Because the decedent had been minimally
conscious during the period of.his suffering, and not "aware of his impending death," the Appellate
Division sustained the award. Accordingly, not only were the d:1mages sustained in Arias
approximately four times greater, if measured solely in terms of dw:ation, than permitted by the Fiest
Department in asbestos-related actions, including the p.resent case, but Mr. Haclf7£~
..,. NOTARY PUBLIC
BARBARA A. PARENTE
Notary Public, State of New York
No. 43-4825778
QuaiWied In Richmond County
Commission Expires October 31, 2018
td-1 ..Jj(ila{ Jd_/J
HEATHER GOLDEN