To Be Argued By:
SETH A. DYMOND
Time Requested: 30 Minutes
APL-2014-00209
New York County Clerk’s Index No. 190196/10
Court of Appeals
STATE OF NEW YORK
IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION
DORIS KAY DUMMITT, Individually and as Executrix
of the Estate of RONALD DUMMITT, deceased,
Respondent,
—against—
A.W. CHESTERTON, et al.,
Defendants,
CRANE CO.,
Appellant.
BRIEF FOR RESPONDENT
d
SETH A. DYMOND
BELLUCK & FOX LLP
546 Fifth Avenue, 4th Floor
New York, New York 10036
Telephone: (212) 681-1575
Facsimile: (212) 681-1574
Attorneys for Respondent
November 12, 2014
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... vi
PRELIMINARY STATEMENT ............................................................................... 1
COUNTER-STATEMENT OF THE CASE ........................................................... 11
A. FACTUAL HISTORY .................................................................................. 11
i. Asbestos components of valves........................................................... 11
ii. Crane’s total immersion in the asbestos industry ................................ 11
iii. Crane’s substantial participation in the decision to standardize the
use of asbestos components in its Naval valves .................................. 12
iv. The specified and essential use of asbestos components with
Crane’s Naval valves ........................................................................... 14
v. The danger of asbestos exposure resulted only from the use of the
asbestos components in synergy with Crane’s high pressure, high
temperature valves ............................................................................... 16
vi. Mr. Dummitt’s normal use of Crane valves ........................................ 17
vii. Crane’s conscious choice not to warn for known asbestos hazards .... 18
viii. The evidence that a warning from Crane would have reached Mr.
Dummitt and that he would have heeded it ......................................... 19
B. PERTINENT PROCEDURAL HISTORY ................................................... 21
i. The provident preclusion of speculative expert opinion ..................... 21
ii. Supreme Court’s charge ...................................................................... 21
iii. Supreme Court’s duty determination .................................................. 22
iv. The Appellate Division decision ......................................................... 23
ii
ARGUMENT ........................................................................................................... 24
I. IN THIS NEGLIGENCE-BASED FAILURE-TO-WARN CASE, A
DUTY TO WARN WAS PROPERLY IMPOSED ON CRANE
UNDER AN ANALYSIS OF THE FACT-SPECIFIC, POLICY-
LADEN CONSIDERATIONS ESPOUSED BY THIS COURT’S
PRECEDENTS AND COGENTLY SYNTHESIZED BY THE
APPELLATE DIVISION .............................................................................. 24
A. The Appropriate Test To Determine Whether A Manufacturer
Owes Its Product User A Duty To Warn In Synergistic
Component-Use Cases Is To Weigh Certain Policy-Laden
Considerations On A Fact-Specific Basis ........................................... 24
i. Appellant’s newly-articulated “control-based” test is
patently baseless and nothing more than a bright-line,
single-factor test in disguise...................................................... 25
ii. The inherently fact-specific nature of a duty analysis in
negligence-based products liability claims supports a
“weighing of factors” test rather than a bright-line test to
determine whether to impose a duty to warn in synergistic
component-use cases ................................................................. 26
iii. In a negligence-based failure-to-warn case, the stream of
commerce inquiry asks simply whether a manufacturer
distributed a product without an adequate warning for a
danger attendant to its use, not necessarily whether it
distributed the specific harmful agent that was released
upon its product’s synergistic use with a component ............... 29
iv. This Court’s precedents and their progeny clearly establish
that a duty to warn in synergistic component-use cases
turns on a weighing of fact-specific, policy-laden
considerations ............................................................................ 31
v. A “weighing of factors” test provides a provident limit to a
product manufacturer’s liability ................................................ 42
B. An Analysis Of The Policy-Laden Factors Unequivocally
Demonstrates That A Duty To Warn Was Properly Imposed On
Crane Under The Circumstances Of This Case .................................. 44
iii
i. The considerations, and their policy-driven underpinnings,
overwhelmingly support a duty to warn in this case ................ 44
1. Crane’s valves were indisputably not sound
products, and a clear duty to warn existed at the time
of sale .............................................................................. 45
2. Asbestos components were “essential” components
that were “specified” for use with Crane’s valves in
this setting ....................................................................... 47
3. Crane’s valves contributed to the release of asbestos
dust from its component parts ........................................ 50
4. Crane marketed asbestos components for this exact
use and exercised control over the Navy’s use of the
same asbestos components with its high pressure,
high temperature valves .................................................. 51
5. Crane derived a benefit from the use of asbestos
gaskets, packing, and lagging pads with its high
pressure, high temperature valves .................................. 53
6. Appellant’s egregious conduct in consciously
choosing to never warn weighs in favor of imposing
a duty to warn ................................................................. 54
7. Mr. Dummitt, as a normal valve user, clearly had a
reasonable expectation of care ........................................ 56
ii. Crane was the manufacturer in the best position to warn ......... 57
iii. The component parts doctrine actually heightens Crane’s
duty to warn under the facts of this case ................................... 60
C. Even Assuming That Appellant’s Request For A New Trial On
The Issue Of Duty Is Reviewable, A New Trial Is Unwarranted
Where A Duty Was Properly Imposed By Supreme Court And
The Jury Did Nothing More Than Serve Its Function By
Adjudicating Foreseeability ................................................................ 62
i. Appellant’s request for a new trial on the issue of duty is
unpreserved and thus nonreviewable ........................................ 62
iv
ii. Since it is the court’s role to determine whether a duty
exists in the first instance, a new trial is not warranted to
permit the jury to determine duty ............................................. 63
II. A REBUTTABLE HEEDING PRESUMPTION EXISTS UNDER
NEW YORK LAW AND WAS PROPERLY CHARGED TO AID
MRS. DUMMITT IN OVERCOMING HER BURDEN OF PROOF.......... 67
A. Presumptions, Which Are Common In Our Jurisprudence, Act In
Specific Circumstances To Aid The Plaintiff In Overcoming Her
Burden Of Persuasion .......................................................................... 67
B. New York Precedents Support A Heeding Presumption In
Certain Failure-To-Warn Actions To Aid The Plaintiff In
Overcoming Her Burden Of Proof As To Causation .......................... 70
C. A Heeding Presumption In Failure-To-Warn Actions Finds
Support In The Exact Same Public Policy Considerations That
Support Other Established Presumptions In Our Jurisprudence ......... 75
D. The Heeding Presumption Was Properly Charged In This Case,
And The Proximate Cause Charge Was Otherwise Adequate To
Convey The Proper Standards ............................................................. 80
E. Even Assuming Arguendo That A Rebuttable Heeding
Presumption Does Not Exist, Plaintiff Did Not Rely Upon It To
Establish A Prima Facie Case ............................................................. 82
III. THE SPECULATIVE OPINION TESTIMONY OF APPELLANT’S
NAVAL EXPERT WAS PROVIDENTLY EXCLUDED ........................... 84
A. This Court Should Decline To Consider Whether The Exclusion
Of Admiral Sargent’s Opinion Testimony Constituted Reversible
Error ..................................................................................................... 85
B. Admiral Sargent’s Opinion Testimony Addressed To Whether
The Navy Would Have Accepted A Warning From Crane If
Crane Would Have Attempted To Provide One Was Providently
Precluded As Supposition Predicated On Speculation ....................... 86
v
IV. APPELLANT’S REMAINING CONTENTIONS SHOULD BE
AUTOMATICALLY AFFIRMED AS NONREVIEWABLE, BUT
EVEN IF CONSIDERED, THEY ARE MERITLESS ................................. 91
A. Appellant’s Challenge To The Apportionment Of Fault Is
Nonreviewable And, In Any Event, Baseless ..................................... 91
B. Appellant’s Challenge To The Recklessness Finding Is
Nonreviewable And Is Otherwise Subject To The Mootness
Doctrine, But Even If Considered, It Is Baseless ................................ 92
C. Appellant’s Challenge To The Quantum Of Damages Is
Nonreviewable And, In Any Event, Baseless ..................................... 95
CONCLUSION ........................................................................................................ 96
vi
TABLE OF AUTHORITIES
NEW YORK CASES
Alfieri v. Cabot Corp.,
17 A.D.2d 455, 235 N.Y.S.2d 753 (1st Dept., 1962) ................................... 30, 64
Andersen v. Delaney,
269 A.D.2d 193, 703 N.Y.S.2d 714 (1st Dept., 2000) ........................................82
Appalachian Ins. Co. v. General Electric Co.,
8 N.Y.3d 162, 863 N.E.2d 994 (2007) .................................................................35
Applebee v. State,
308 N.Y. 502 (1955) ............................................................................................70
Baleno v. Jacuzzi Research, Inc.,
93 A.D.2d 982, 461 N.Y.S.2d 659 (4th Dept., 1983) ..........................................38
Bender v. Rodriguez,
302 A.D.2d 882, 754 N.Y.S.2d 475 (4th Dept., 2003) ........................................68
Berkowitz v. A.C. & S., Inc.,
288 A.D.2d 148, 733 N.Y.S.2d 410 (1st Dept., 2001) ................................ passim
Bingham v. New York City Transit Authority,
99 N.Y.2d 355, 786 N.E.2d 28 (2003) .......................................................... 62, 85
Blake v. Neighborhood Housing Services of New York City, Inc.,
1 N.Y.3d 280, 803 N.E.2d 757 (2003) ...................................................... 9, 67, 68
Brumbauch v CEJJ, Inc.,
152 A.D.2d 69, 547 N.Y.S.2d 699 (3d Dept., 1989) ...........................................25
Cassano v Hagstrom,
5 N.Y.2d 643, 159 N.E.2d 348 (1959) .................................................... 10, 87, 89
Codling v. Paglia,
32 N.Y.2d 330, 298 N.E.2d 622 (1973) ........................................................ 30, 56
Cohen v. Hallmark Cards, Inc.,
45 N.Y.2d 493, 410 N.Y.S.2d 282 (1978) ...........................................................66
vii
Cooley v. Carter-Wallace Inc.,
102 A.D.2d 642, 478 N.Y.S.2d 375 (4th Dept., 1984) ........................... 35, 58, 63
Cover v. Cohen,
61 N.Y.2d 261, 473 N.Y.S.2d 378 (1984) ................................................ 2, 29, 35
Darby v. Compagnie National Air France,
96 N.Y.2d 343, 753 N.E.2d 160 (2001) ...............................................................65
DeAngelis v. Lutheran Med. Center,
58 N.Y.2d 1053, 462 N.Y.S.2d 626 (1983) .........................................................26
Denny v. Ford Motor Co.,
87 N.Y.2d 248, 662 N.E.2d 730 (1995) ............................................ 27, 30, 40, 56
Di Ponzio v. Riordan,
89 N.Y.2d 578, 657 N.Y.S.2d 377 (1997) .................................................... 28, 63
Eiseman v State,
70 N.Y.2d 175, 518 N.Y.S.2d 608 (1987) .......................................................9, 64
Enright v. Eli Lilly & Co.,
77 N.Y.2d 377, 568 N.Y.S.2d 550 (1991) ................................................ 1, 27, 64
Espinal v Melville Snow Contrs.,
98 N.Y.2d 136, 746 N.Y.S.2d 120 (2002) ................................................ 2, 27, 28
German v. Morales,
24 A.D.3d 246, 806 N.Y.S.2d 493 (1st Dept., 2005) ..........................................74
Green v. Downs,
27 N.Y.2d 205, 265 N.E.2d 68 (1970) .................................................................64
Green v. William Penn Life Ins. Co. of New York,
12 N.Y.3d 342, 907 N.E.2d 700 (2009) ........................................................ 68, 69
Grzesiak v. General Elec. Co.,
68 N.Y.2d 937, 502 N.E.2d 994 (1986) ........................................................ 63, 94
Guadalupe v. Drackett Prods. Co.,
253 A.D.2d 378, 676 N.Y.S.2d 177 (1st Dept., 1998) ........................................71
Guzman v. 4030 Bronx Blvd. Associates L.L.C.,
54 A.D.3d 42, 861 N.Y.S.2d 298 (1st Dept., 2008) ............................................89
viii
Hamilton v Beretta U.S.A. Corp.,
96 N.Y.2d 222, 727 N.Y.S.2d 7 (2001) ...............................................................56
Hearst Corp. v. Clyne,
50 N.Y.2d 707, 431 N.Y.S.2d 400 (1980) .................................................... 92, 93
Hess v. Mack Trucks,
159 A.D.2d 557, 552 N.Y.S.2d 423 (2d Dept., 1990) .........................................37
Hoover v. New Holland North America, Inc.,
23 N.Y.3d 41, 11 N.E.3d 693 (2014) ...............................................................2, 28
In re Eighth Judicial Dist. Asbestos Litig. [Drabczyk],
92 A.D.3d 1259, 938 N.Y.S.2d 715 (4th Dept., 2012) ........................... 36, 44, 93
In re Eighth Judicial Dist. Asbestos Litig. [Suttner v Crane Co.],
115 A.D.3d 1218 (4th Dept., 2014) .......................................................... 3, 36, 43
In re New York Asbestos Litig. [Marshall],
28 A.D.3d 255, 812 N.Y.S.2d 514 (1st Dept., 2006) ..........................................91
In re New York City Asbestos Litig. [D=Ulisse],
16 Misc.3d 945, 842 N.Y.S.2d 333 (Sup. Ct., N.Y. Co., 2007) ..........................93
In re New York City Asbestos Litig. [Tancredi],
6 A.D.3d 352, 775 N.Y.S.2d 520 (1st Dept., 2004) ............................................59
Johnson v. Johnson Chemical Co., Inc.,
183 A.D.2d 64, 588 N.Y.S.2d 607 (2d Dept., 1992) ...........................................74
Jorgensen v. N.Y. Foundation for Sr. Citizen Guardian Services, Inc.,
61 A.D.3d 612, 876 N.Y.S.2d 870 (1st Dept., 2009) ..........................................64
Kirschhoffer v. Van Dyke,
173 A.D.2d 7, 577 N.Y.S.2d 512 (3d Dept., 1991). ............................................82
Lancaster Silo & Block Co v. Northern Propane Gas Co.,
75 A.D.2d 55, 427 N.Y.S.2d 1009 (4th Dept., 1980) ................................... 73, 78
Liriano v. Hobart Corp.,
92 N.Y.2d 232, 677 N.Y.S.2d 764 (1998) ................................................... passim
Lucas v. New York City Tr. Auth.,
163 A.D.2d 21, 557 N.Y.S.2d 919 (1st Dept., 1990) ..........................................91
ix
Lustenring v. AC&S, Inc.,
13 A.D.3d 69, 786 N.Y.S.2d 20 (1st Dept., 2004) ..............................................91
Maas v. Cornell University,
253 A.D.2d 1, 683 N.Y.S.2d 634 (3d Dept., 1999) .............................................49
MacPherson v. Buick Motor Co.,
217 N.Y. 382, 111 N.E. 1050 (1916) ...................................................................55
Maltese v Westinghouse Electric Corp.,
89 N.Y.2d 955, 655 N.Y.S.2d 855 (1997) .................................................... 93, 94
Marine Midland Bank v Russo Produce Co.,
50 N.Y.2d 31, 427 N.Y.S.2d 961 (1980) .............................................................67
Martin v. Herzog,
228 N.Y. 164, 126 N.E. 814, 816 (1920) ...................................................... 69, 75
Matter of Barbara C.,
64 N.Y.2d 866, 487 N.Y.S.2d 549 (1985) ...........................................................93
Matter of New York County DES Litigation [Wetherill],
89 N.Y.2d 506, 655 N.Y.S.2d 862 (1997) ...........................................................77
McLaughlin v. Mine Safety Appliances Co.,
11 N.Y.2d 62 181 N.E.2d 430 (1962) ....................................................... 5, 56, 64
Mead v Warner Pruyn Division,
57 A.D.2d 340, 394 N.Y.S.2d 483 (3d Dept., 1977) .................................... 25, 59
Merrill v. Albany Medical Center Hosp.,
71 N.Y.2d 990, 524 N.E.2d 873 (1988) ........................................................ 62, 92
Micallef v. Miehle Co.,
39 N.Y.2d 376, 348 N.E.2d 571 (1976) ........................................................ 29, 57
Morejon v. Rais Const. Co.,
7 N.Y.3d 203, 851 N.E.2d 1143 (2006) ........................................................ 69, 75
Mullhall v Hannafin,
45 A.D.3d 55, 841 N.Y.S.2d 282 (1st Dept., 2007) ............................................71
Murdza v Zimmerman,
99 N.Y.2d 375, 756 N.Y.S.2d 505 (2003) .............................................. 10, 68, 76
x
Noseworthy v. City of New York,
298 N.Y. 76, 80 N.E.2d 744 (1948) .....................................................................69
Oboler v. City of New York,
8 N.Y.3d 888, 864 N.E.2d 1270 (2007) ...............................................................90
O'Brien v. Erie R. Co.,
210 N.Y. 96, 103 N.E. 895 (1913) .......................................................................70
O'Connor v. Eggleston,
31 A.D.2d 735, 297 N.Y.S.2d 29 (4th Dept., 1968) ............................................67
Palka v Servicemaster Mgt. Servs. Corp.,
83 N.Y.2d 579, 611 N.Y.S.2d 817 (1994) ................................................... passim
Penn v. Jaros, Baum & Bolles,
25 A.D.3d 402, 809 N.Y.S.2d 6 (1st Dept., 2006) ............................. 4, 36, 43, 50
People v. Lewis,
5 N.Y.3d 546, 840 N.E.2d 1014 (2005) ........................................................ 80, 94
People v. Miller,
91 N.Y.2d 372, 694 N.E.2d 61 (1998) .......................................................... 85, 87
People v. Morris,
21 N.Y.3d 588, 999 N.E.2d 160 (2013) ........................................................ 70, 81
People v. Williams,
301 A.D.2d 794, 754 N.Y.S.2d 401 (3d Dept., 2003) .........................................81
Power v. Crown Controls Corp.,
149 Misc.2d 967, 568 N.Y.S.2d 674 (Sup. Ct., N.Y. Co., 1990) ........................73
Rangolan v. County of Nassau,
96 N.Y.2d 42, 749 N.E.2d 178 (2001) .................................................................94
Rastelli v. Goodyear Tire & Rubber Co.,
79 N.Y.2d 289, 591 N.E.2d 222 (1992) ....................................................... passim
Reis v. Volvo Cars of North America,
24 N.Y.3d 35, 993 N.Y.S.2d 672 (2014) .............................................................83
Reis v. Volvo Cars of North America, Inc.,
73 A.D.3d 420, 901 N.Y.S.2d 10 (1st Dept., 2010) ............................................73
xi
Rios v Smith,
95 N.Y.2d 647, 722 N.Y.S.2d 220 (2001) ...........................................................95
Robinson v Reed-Prentice Div. of Package Mach. Co.,
49 N.Y.2d 471, 426 N.Y.S.2d 717 (1980) ...........................................................71
Rochester Refrigerating Corp v Easy Heat, Inc.,
222 A.D.2d 1013, 635 N.Y.S.2d 89 (4th Dept., 1995) ........................................71
Rogers v. Sears, Roebuck & Co.,
268 A.D.2d 245, 701 N.Y.S.2d 359 (1st Dept., 2000) ................................ passim
Roshwalb v. Regency Maritime Corp.,
182 A.D.2d 401, 582 N.Y.S.2d 140 (1st Dept., 1992) ........................................65
Sage v. Fairchild-Swearingen Corp,
70 N.Y.2d 579, 517 N.E.2d 1304 (1987) ..................................................... passim
Schaefer v. N.Y.C. Transit Authority,
96 A.D.3d 485, 946 N.Y.S.2d 154 (1st Dept., 2012) ..........................................80
Schafer v. Mayor of City of N. Y.,
154 N.Y. 466 (1897) ............................................................................................79
Schechter v. Klanfer,
28 N.Y.2d 228, 269 N.E.2d 812 (1971) ........................................................ 68, 69
Schelberger v. Eastern Sav. Bank,
60 N.Y.2d 506, 458 N.E.2d 1225 (1983) ................................................ 69, 76, 78
Sosna v American Home Products,
298 A.D.2d 158, 748 N.Y.S.2d 548 (1st Dept., 2002) ........................................71
Speller v. Sears, Roebuck and Co.,
100 N.Y.2d 38, 790 N.E.2d 252 (2003) ...............................................................28
Spensieri v. Lasky,
94 N.Y.2d 231, 723 N.E.2d 544 (1999) ...............................................................95
Spivak v Heyward,
248 A.D.2d 58, 679 N.Y.S.2d 156 (2d Dept., 1998) ...........................................68
Sprung v MTR Ravensburg, Inc.,
99 N.Y.2d 468, 758 N.Y.S.2d 271 (2003) .............................................. 35, 59, 70
xii
Tate v. Colabello,
58 N.Y.2d 84, 459 N.Y.S.2d 422 (1983) .............................................................95
Tortoriello v. Bally Case, Inc.,
200 A.D.2d 475, 606 N.Y.S.2d 625 (1st Dept., 1994) ............................. 4, 37, 44
Turcotte v. Fell,
68 N.Y.2d 432, 502 N.E.2d 964 (1986) ...............................................................27
Union Carbide Corp. v. Affiliated FM Ins. Co.,
101 A.D.3d 434, 955 N.Y.S.2d 572 (1st Dept., 2012) ........................................72
Upfold v Generac Corp.,
224 A.D.2d 1021, 638 N.Y.S.2d 264 (4th Dept., 1996) ......................................71
Vadala v. Carroll,
59 N.Y.2d 751, 463 N.Y.S.2d 432 (1983) .................................................... 91, 92
Van Tuyl v State,
6 A.D.2d 209, 175 N.Y.S.2d 951 (4th Dept., 1958) ............................................73
Village of Groton v. Tokheim Corp.,
202 A.D.2d 728, 608 N.Y.S.2d 565 (3d Dept., 1994) .........................................37
Wood v. State,
112 A.D.2d 612, 492 N.Y.S.2d 481 (3d Dept., 1985) .........................................73
Young v. Robertshaw Controls Co.,
101 A.D.2d 670, 476 N.Y.S.2d 24 (3d Dept., 1984) ...........................................38
FEDERAL CASES
Adesina v. Aladan Corp.,
438 F.Supp.2d 329 (S.D.N.Y., 2006) ..................................................................73
Anderson v. Hedstrom Corp,
76 F.Supp.2d 422 (S.D.N.Y., 1999) ............................................................. 73, 75
Baughman v. General Motors Corp.,
780 F.2d 1131 (4th Cir., 1986) ............................................................................54
Boucher v. U.S. Suzuki Motor Corp.,
73 F.3d 18 (2d Cir., 1996) ...................................................................................89
xiii
Chicano v. General Electric Company,
2004 WL 2250990 (E.D.Pa., 2004) .....................................................................41
Conner v Alfa Laval, Inc.,
842 F.Supp.2d 791 (E.D.Pa., 2012) .....................................................................41
Dalton v 3M Co.,
2011 WL 5881011 (E.D.Pa., 2011) .....................................................................41
Derienzo v. Trek Bicycle Corp.,
376 F.Supp.2d 537 (S.D.N.Y., 2005) ..................................................................74
Feres v U.S.,
340 U.S. 135 (1950) .............................................................................................58
G.E. Capital Corp v. A.O. Smith Corp.,
2003 WL 21498901 (S.D.N.Y., 2003) .................................................................73
Gitto v. A.W. Chesterton,
2010 U.S. Dist. LEXIS 144568 (S.D.N.Y., 2010) ........................................ 37, 43
Henry v Rehab Plus Inc.,
404 F.Supp.2d 435 (E.D.N.Y., 2005) ..................................................................73
Humphrey v. Diamant Boart, Inc.,
556 F.Supp.2d 167 (E.D.N.Y., 2008) ..................................................................74
In re Asbestos Products Liability Litigation (No. VI) [Hoffeditz],
2011 WL 5881008 (E.D.Pa., 2011) .....................................................................41
In re Brooklyn Navy Yard Asbestos Litig.,
971 F.2d 831 (2d Cir., 1992) ........................................................................ 58, 77
In re Hawaii Federal Asbestos Cases,
960 F.2d 806 (9th Cir., 1992) ..............................................................................90
In re Joint E. & S. Dist. N.Y. Asbestos Litig. [Grispo],
897 F.2d 626 (2d Cir., 1990). ..............................................................................90
In re TMJ Implants Products Liability Litig.,
872 F.Supp.1019 (D.Minn., 1995) .......................................................................60
Lindstrom v. A-C Prod. Liab. Trust,
424 F.3d 488 (6th Cir., 2005) ..............................................................................41
xiv
Liriano v. Hobart Corp.[Liriano II],
170 F.3d 264 (2d Cir., 1999) .............................................................. 9, 74, 75, 81
Oliver v. Oshkosh Truck Corp.,
96 F.3d 992 (7th Cir., 1996) ................................................................................90
Payne v. Soft Sheen Products, Inc.,
486 A.2d 712 (D.C. Cir., 1985) ...........................................................................79
Quirin v. Lorillard Tobacco Company,
__ F.Supp.2d __, 2014 WL 585090 (N.D. Ill., 2014)..........................................41
Raney v. Owens-Illinois, Inc.,
897 F.2d 94 (2d Cir., 1990) .......................................................................... 74, 82
Santoro v. Donnelly,
340 F.Supp.2d 464 (S.D.N.Y., 2004) ........................................................... 72, 73
Sether v. Agco Corp.,
2008 WL 1701172 (S.D.Ill., 2008) ......................................................................41
Surre v. Foster Wheeler LLC,
831 F.Supp.2d 797 (S.D.N.Y., 2011) .......................................................... passim
Tate v. Boeing Helicopters, Inc,
55 F.3d 1150 (6th Cir., 1995) ..............................................................................90
Wake v United States,
89 F.3d 53 (2d Cir., 1996) ...................................................................................58
OTHER STATE CASES
Braaten v. Saberhagen Holdings,
165 Wash.2d 373, 198 P.3d 493 (Wash., 2008) ........................................... 28, 40
Branon v. Gen. Elec. Co.,
2005 WL 1792122 (Ky. App. Ct., 2005) .............................................................41
Butz v. Werner,
438 N.W.2d 509 (N.D., 1989) .............................................................................71
Coffman v. Keene Corp.,
133 N.J. 581, 628 A.2d 710 (N.J., 1993) ...................................................... 71, 75
xv
Eagle-Picher Industries, Inc. v. Balbos,
326 Md. 179, 604 A.2d 445 (Md., 1992) ...................................................... 76, 78
Hughes v. A.W. Chesterton Co.,
435 N.J.Super. 326, 89 A.3d 179 (N.J. A.D., 2014) ............................................41
Lindquist v. Buffalo Pumps, Inc.,
2006 WL 3456346 (R.I. Super. Ct., 2006) ..........................................................41
Macias v. Saberhagen Holdings, Inc.,
175 Wash.2d 402, 282 P.3d 1069 (Wash. 2012) .................................................40
May v Air and Liquid Systems Corp.,
__ A.3d __, 2014 WL 4958163 (Md. Ct. Sp. App., 2014) ..................................41
O’Neil v. Crane Co.,
53 Cal.4th 335, 266 P.3d 987 (Cal. 2012) .................................................... 39, 40
Phillips v. Hoffman/New Yorker, Inc.,
2013 WL 4715263 (Del. Sur. Ct., 2013) ............................................................41
Shields v. Hennessy Industries, Inc.,
205 Cal.App.4th 782, 140 Cal.Rptr.3d 268 (Cal.App. 1st Dist., 2012) ..............40
Sweredoski v Alfa Laval, Inc.,
2013 R.I. Super. LEXIS 185 (R.I. Super. Ct., 2013) ...........................................41
Technical Chemical Co. v. Jacobs,
480 S.W.2d 602 (Tex., 1972)...............................................................................78
Whiting v. CBS Corp.,
83 Mass.App.Ct 1113 (Mass. App. Ct., 2013) ....................................................41
STATUTES
28 U.S.C. § 1346 ......................................................................................................58
C.P.L.R. § 1401 ........................................................................................................59
C.P.L.R. § 1601 ........................................................................................... 59, 92, 94
C.P.L.R. § 1602 ................................................................................................. 92, 94
C.P.L.R. § 1603 ................................................................................................. 59, 91
xvi
C.P.L.R. § 2002 ........................................................................................................82
C.P.L.R. § 214-c .......................................................................................................77
McKinney’s Statutes § 301 ......................................................................................94
SECONDARY SOURCES
P.J.I. 1:60..................................................................................................................81
P.J.I. 2:120 ........................................................................................................ 27, 64
P.J.I. 2:275.1 ............................................................................................................81
P.J.I. 2:275.2 ............................................................................................................95
P.J.I. 2:70..................................................................................................................81
P.J.I. Companion Handbook (2014 ed.) ...................................................................72
Prosser and Keeton, Torts (5th ed.) ............................................................ 26, 34, 67
Restatement (Second) of Torts (1965) .............................................................. 30, 70
Restatement (Third) of Torts (1998) ........................................................... 28, 60, 61
1
PRELIMINARY STATEMENT
In an effort to escape any and all liability for its conscious failure to warn
any end user against the latent and unavoidable dangers of asbestos exposure
attendant to the normal and intended use of its products, despite its admitted actual
knowledge of such lethal hazards and its rampant sale of both asbestos-containing
products and aftermarket asbestos components for 135 years without ever testing,
inspecting, or warning, Defendant-Appellant Crane Co. (hereinafter “Appellant” or
“Crane”) seeks a radical departure from the deeply-rooted and equitable common-
law of this State. In so doing, Appellant misreads this Court’s precedents, appears
to ignore the facts of this case, and advances arguments never raised before.
Despite doggedly advancing a bright-line, single-factor test for duty throughout
this case, Appellant now proffers a newly-formulated “control-based” approach.
This, however, is simply an attempt to present a more palatable variation of its
bright-line rule. Appellant’s automatic rule, under any pretext, cannot be
reconciled with New York law.
New York employs a negligence-based approach to failure-to-warn claims.
See Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 385-87, 568 N.Y.S.2d 550 (1991),
rearg. denied 77 N.Y.2d 990. Consequently, this Court has consistently rejected
bright-line rules in the context of our products liability jurisprudence. See, e.g.,
Hoover v. New Holland North America, Inc., 23 N.Y.3d 41, 59, 11 N.E.3d 693
2
(2014); Liriano v. Hobart Corp., 92 N.Y.2d 232, 242-43, 677 N.Y.S.2d 764 (1998).
More to the point, this Court has expressly avowed that the “policy-laden nature of
the existence and scope of a duty generally precludes any bright-line rules...”
Espinal v Melville Snow Contrs., 98 N.Y.2d 136, 139, 746 N.Y.S.2d 120 (2002).
A duty to warn inquiry is thus “intensely fact-specific.” Liriano, supra at 240, 243.
Indeed, in negligence-based design defect cases, this Court has rejected the
very bright-line rule that Appellant seeks to impose in failure-to-warn cases. See
Sage v. Fairchild-Swearingen Corp, 70 N.Y.2d 579, 587, 517 N.E.2d 1304 (1987)
(that the injurious replacement component was placed into the stream of commerce
by a third-party is “not dispositive” of the equipment manufacturer’s duty where it
was anticipated that the original component would break and need replacement).
And in a failure-to-warn context, this Court has implicitly rejected such a single-
factor test by espousing a “weighing of factors” approach for a post-sale duty to
warn inquiry. See Liriano, supra at 240 n.3 (citing Cover v. Cohen, 61 N.Y.2d 261,
275-76, 473 N.Y.S.2d 378 (1984)). Against these clear precedents, it would be
wholly incongruous to adopt an automatic, single-factor test for a duty to warn
inquiry in the species of failure-to-warn cases presented here. It is not surprising,
then, that no New York court has ever done so.
In Rastelli v. Goodyear Tire & Rubber Co. (79 N.Y.2d 289, 297, 591 N.E.2d
222 (1992)), this Court considered, “under the circumstances of th[at] case,”
3
whether a tire manufacturer owed a duty to warn for a danger from a third-party’s
defective rim component that was randomly used at some point post-sale with the
manufacturer’s tire on some arbitrary vehicle. Far from embracing an absolute
strict liability approach, whereby the sole determinative factor as to duty would
have been whether the tire manufacturer placed the injury-producing rim into the
stream of commerce, this Court additionally considered whether (1) the
defendant’s product was “sound,” (2) the component at issue was merely
compatible for use with the product or something more than compatible, (3) the
defendant’s product created or contributed to the defect at issue, (4) the defendant
exercised control over the production of the component or ever marketed it, and (5)
the defendant derived a benefit from the sale of the component. Thus, Rastelli
plainly does not stand for a “control-based” or automatic rule as to duty.
Indeed, here, all five Appellate Division Justices agreed that a duty to warn
could be imposed where the manufacturer’s “role, interest, or influence” in the
synergistic use of its product with third-party components was sufficiently
significant to distinguish the case from Rastelli (COA 38-45, 55-59).
1
A review of
Rastelli’s progeny makes clear that all such decisions rested on a weighing of fact-
1
Five additional Appellate Division Justices and dozens of New York Supreme Court
Justices have similarly concluded that Crane, specifically, owed a duty to warn in similar
circumstances under New York’s negligence-based approach to failure-to-warn claims. See, e.g.,
In re Eighth Jud. Dist. Asbestos Litig. [Suttner v Crane Co.], 115 A.D.3d 1218 (4th Dept., 2014),
aff’ing 2013 WL 9816609 (Sup. Ct., Erie Co., 2013); see also (R. 5332-5429).
4
specific, policy-laden considerations that either did or did not place the case within
Rastelli’s orbit. Compare, e.g., Penn v. Jaros, Baum & Bolles, 25 A.D.3d 402, 809
N.Y.S.2d 6 (1st Dept., 2006) (distinguishing Rastelli); Rogers v. Sears, Roebuck &
Co., 268 A.D.2d 245, 701 N.Y.S.2d 359 (1st Dept., 2000) (same), with Tortoriello
v. Bally Case, Inc., 200 A.D.2d 475, 477, 606 N.Y.S.2d 625 (1st Dept., 1994)
(finding Rastelli apposite); Surre v. Foster Wheeler LLC, 831 F.Supp.2d 797, 804
(S.D.N.Y., 2011) (same).
Therefore, the proper approach for determining whether to impose a duty to
warn on a product manufacturer in synergistic component-use scenarios should be
a weighing of the policy-laden considerations. Importantly, here, the Appellate
Division did not create new considerations; it merely provided a reasonable
interpretation of the existing ones by expressing the overarching inquiry as whether
the defendant had a “sufficiently significant role, interest, or influence in the type
of component used with its product after it enters the stream of commerce” (COA
41). In fact, the Appellate Division made plain that its framework was nothing
more than what Rastelli and its progeny “together st[oo]d for.” (COA 41).
A weighing of these considerations unequivocally demonstrates that a duty
was properly imposed on Appellant in this case, which is perhaps why Appellant
addresses the facts in only the most conclusory fashion. First, Appellant’s valves
were not sound products; they were supplied with original consumable asbestos
5
gaskets and packing – including Cranite, Appellant’s own brand of asbestos
gaskets – that, upon their inevitable deterioration, mandated routine replacement
with identical components by design and specification to ensure functionality (R.
1160-61[2081-82], 1509[2893-94], 5443, 5449-50; SR. 1-50).
2
Thus, a duty to warn indisputably existed at the time these asbestos-
containing valves were sold, but Appellant still chose not to warn despite its actual
knowledge of the dangers. The notion that this preexisting duty dissolved once
those original components were removed, especially where they were purposefully
intended to be removed and replaced, is patently absurd. Appellant seeks to draw
an inequitable, hairsplitting distinction between a duty owed to the first valve user
– who would have worked on original components – and all subsequent normal
users, who by happenstance in this setting worked with third-party aftermarket
components instead of ones supplied directly by Appellant. In either instance,
exposure to asbestos from the normal use of Crane’s valves was unavoidable. See
McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 68, 181 N.E.2d 430
(1962) (“duty to warn of latent dangers extends to” all normal product users).
To permit Appellant to avoid liability here would significantly devalue core
products liability duties by incentivizing manufacturers to disregard their
2
“R. __ []” refers to the record page followed by the miniscript trial transcript page in
brackets.
6
fundamental duties to inspect, test, stay abreast of scientific knowledge and
advancements, and warn post-sale in every circumstance involving perishable or
breakable components. See Sage, 70 N.Y.2d 579, supra at 587 (“to insulate a
manufacturer under such circumstances would allow it to escape liability for
designing flimsy parts secure in the knowledge that once the part breaks and is
replaced, it will no longer be liable”). Nor should Appellant’s indefensible failure
to warn for the original asbestos components it actually placed into the stream of
commerce be condoned, particularly where an original warning would have
sufficiently apprised the decedent of the exact dangers at issue here.
Second, the asbestos gaskets, packing, and lagging pads were not merely
compatible for use with Crane’s high pressure, high temperature Navy boiler room
valves; they were specified by prescription for use in these particular valves (R.
1163-1166[2090-2102], 1505-06[2878-79], 1509[2891-92], 1519[2931], 3425-83,
3876; SR. 1-50), and were deemed “essential to [the] economic operation” of the
valves in these particular services (R. 3869; 984[1680], 1501[2859-60], 3616,
3876-78). As noted by the Appellate Division dissenters (who did not dissent on
this issue), their use was a “known certainty” to Crane (COA 58).
Third, Crane’s valves certainly contributed to the dangerous condition since
it was only the use of these asbestos components in combination with these
particular Crane valves that created the release of asbestos-laden dust. The gasket,
7
packing, and lagging pad components posed no risk of asbestos dust release unless
deteriorated or manipulated (R. 330[261], 929[1574], 986[1685-86], 1605[3114-
15], 5444-45, 5494). Crane was fully aware that it was these components’ specific
use with its high pressure, high temperature valves that compromised these
components, thereby creating a danger of asbestos exposure to normal valve users
like the decedent (R. 929[1574], 980[1663], 984[1677-78], 1003[1756],
1169[2116], 1172[2126-27], 1178[2152], 1336[2475], 3875, 3879, 5488, 5490,
5492). By contrast, the use of these components in certain applications did not
disturb the asbestos (R. 1500[2856-57], 1627[3200]), so no danger was created.
Fourth, Crane marketed these asbestos components for use in its valves and
substantially participated in the decision to use asbestos components with its valves
in this specific setting. Crane provided the Navy with “valuable assistance” in
standardizing what type of components should be specified for use with valves
placed in Naval systems (R. 3867, 3876), the purpose of which was to ensure that
the Navy knew exactly what replacement components to use with each particular
valve (R. 1509[2891-92]). Since Appellant was the “world’s foremost
manufacturer of valves” (R. 3885), and had a century-old business practice of
selling, marketing, endorsing, specifying, and recommending asbestos components
for use with its high pressure, high temperature valves in both marine and land-
8
based settings (R. 5432; 3590-92, 3603, 3608-09, 3654, 3718-23, 3907, 3958-77),
it is no surprise that the Navy took its cues from Crane.
Fifth, Appellant derived a benefit from the use of asbestos components with
its high pressure, high temperature valves, since only valves sealed and insulated
with the “correct” material could function as intended in the “specific services”
that Crane knew they would be used in (R. 3876; 984[1680], 1501[2859-60], 3616,
3878). In fact, Crane’s benefit was so high that it purposefully “substituted”
Cranite as an original component in these valves (R. 1163-1166[2090-2102]).
Sure enough, Appellant advocates for a single-factor test since the only
factor weighing in its favor is that it, by chance, did not supply the exact asbestos
components that the decedent was exposed to at the time he happened to be using
Appellant’s valves as they were purposefully intended to be used in this setting.
Simply put, the facts here are “not even close to Rastelli because of Crane’s
demonstrated interest in the use of asbestos components with its valves” (COA 44).
To that end, Appellant raises an alternative argument seeking a new trial.
Since this issue is unpreserved, it is nonreviewable. But even if considered,
Appellant improperly conflates the roles of the court and jury. A determination as
to legal duty is, in the first instance, one for the court, whereas the issue of
foreseeability is left to the fact-finder. See Palka v Servicemaster Mgt. Servs.
Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817 (1994). Thus, a new trial is not
9
warranted to permit a jury to determine legal duty, because it is not the jury’s role
to do so. Here, Supreme Court properly determined that a duty existed, and the
jury was then properly charged with determining foreseeability in the context of a
breach of that duty (R. 1769, 2031). See Eiseman v State, 70 N.Y.2d 175,187, 518
N.Y.S.2d 608 (1987) (foreseeability is a “factual issue to be resolved on a case-by-
case basis by the fact finder”).
Accordingly, a duty to warn was properly imposed on Appellant, and neither
judgment in Appellant’s favor nor a new trial is warranted on this issue.
As to Appellant’s causation argument, a rebuttable heeding presumption
finds firm support in this Court’s precedents and in the same policy considerations
supporting established rebuttable presumptions in our jurisprudence. A heeding
presumption does not shift the burden of proof; it merely shifts the burden of
production. See Liriano v. Hobart Corp.[Liriano II], 170 F.3d 264, 271-72 (2d Cir.,
1999). It is an aid to plaintiffs in circumstances like here, which involve latent
injury and inexorable death, since it may be difficult or impossible for a plaintiff to
establish that a warning, if given, would have been heeded. Cf. Blake v.
Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, 289 n.8,
803 N.E.2d 757 (2003) (a rebuttable presumption is just an “aid” to the plaintiff).
Importantly, Appellant takes the untenable position that a plaintiff must meet
her causation burden without the benefit of either direct testimony that a warning
10
would have been heeded, because it is purportedly speculative, or a rebuttable
heeding presumption. This would create an impossible burden. Cf. Murdza v
Zimmerman, 99 N.Y.2d 375, 379-80, 756 N.Y.S.2d 505 (2003) (purpose of a
rebuttable presumption is to remove the hardship visited upon the innocent
plaintiff). Thus, a heeding presumption was properly charged here.
Nor was Supreme Court’s preclusion of Admiral David Sargent’s opinion
testimony an abuse of discretion. Appellant sought to have Admiral Sargent opine
that if Crane “would have” attempted to give a warning at any time between 1940
and 1980, the Navy “would have” rejected it. Contrary to the Appellate Division
dissenters, who mistakenly believed this testimony was precluded on relevancy
grounds (COA 62-65), it was actually precluded because it was predicated on sheer
speculation (R. 75-76, 1520-21[2938-40]). See Cassano v Hagstrom, 5 N.Y.2d
643, 645-46 (1959), rearg. denied 6 N.Y.2d 882. Admiral Sargent has no personal
knowledge of the Navy’s procurement practices between 1940 and 1980, and the
evidence in the record not only failed to support this opinion, but it affirmatively
contradicted it, which Admiral Sargent conceded (R. 1486-88, 1499, 1516-18).
Appellant’s remaining “weight of the evidence” contentions – addressed to
apportionment, recklessness, and the quantum of damages – are nonreviewable and
should be automatically affirmed.
Accordingly, the order of the Appellate Division should be affirmed.
11
COUNTER-STATEMENT OF THE CASE
A. FACTUAL HISTORY
Appellant cites the factual record in only the most conclusory fashion,
largely without any citation whatsoever, to give the illusion that it was indifferent
to the use of asbestos components with its Naval valves. As recognized by the
Appellate Division (COA 42-44), the record could not be more to the contrary.
i. Asbestos components of valves
Naval valves restrict or admit the flow of steam or fluid (R. 5487). Asbestos
gaskets were consumable, ring-like components used to seal, inter alia, the internal
valve bonnet (R. 5449, 5488-89). Asbestos packing was a fungible, rope-like
material used to seal the valve stem (R. 5449, 5491-95). Asbestos lagging pads
were wrapped on valves to prevent heat loss (R. 3869, 3875). Vigilant
replacement of these perishable components was a fundamental design feature of
these valves (R. 1169-84[2116-77], 1500-05[2856-57, 2878], 5498), such that
asbestos exposure was unavoidable to any person maintaining these valves in their
normal course (R. 5490).
ii. Crane’s total immersion in the asbestos industry
Since 1850, Crane was the “world’s foremost manufacturer of valves” (R.
3590, 3885). Far from being a peripheral entity to the asbestos industry, Crane’s
12
immersion therein was staggering. Dating back almost a century before selling a
single valve to the Navy, Crane was a seller, user, and marketer of scores of
different asbestos products, including gaskets, packing, insulation, pipe covering,
paper, millboard, wick, and felt, which it placed originally in its equipment and
which it sold separately as aftermarket products (R. 3659-65, 3745-52, 3892-99,
3910-16, 3924, 3936-37, 3951, 5432). It had its own brand of asbestos gaskets –
“Cranite” – which it sold for 50 years (R. 3661, 5441-42). The use of asbestos
components with its valves was, thus, a standard business practice.
iii. Crane’s substantial participation in the decision to standardize
the use of asbestos components in its Naval valves
In the private sector, Crane dictated the use of asbestos components by valve
service type (R. at 3661-62, 3746, 3892-93, 3896-97, 3910-54). It placed Cranite
into “all CRANE valves for high pressure, saturated or superheated steam” (R.
3603) (emphasis added), and instructed on the necessary “repacking” of these
consumable components (R. 3743-44). Crane also sold and marketed asbestos
insulation as unexcelled for insulating valves (R. at 3606, 3616, 3665, 3745, 3894-
95, 3915), advertised that its marine valves were “easier to insulate” based on their
design (R. at 1277 [2411], 3945, 5443, 5563), and its catalogs depict insulated
Crane valves in high temperature systems (R. at 3739-40).
13
Crane operated as a “one source of supply,” and underscored
“standardization” that was “backed by single responsibility” (R. 3843, 3847).
Clearly knowing that these asbestos components were perishable, Crane
emphasized that its valve nameplates were “extremely important” for the proper
“ordering of replacement parts” (R. 3939), and that purchasing of Cranite should
be made in bulk (R. 3661, 3912, 3924).
In light of this century-old business practice, and Crane’s status as the
leading seller of valves to the Navy (R. 5488), the Navy sought Crane’s help in
determining standardization of valve component parts (R. 3866-80). Crane offered
the Navy “valuable assistance” in creating Naval Machinery, the manifesto on
standardization that specified the “correct” use of asbestos components with high
pressure, high temperature valves as “essential to economic operation” (R. 3867,
3869, 3876). Crane was one of a few valve manufacturers that helped the Navy
create standardization for valves (R. 3867), and the others were merely specialty
regulator or gage manufacturers (R. 1179[2154], 3867). The standardized use of
asbestos components in high pressure, high temperature Naval valves was, thus,
derived from and shaped by Crane’s expertise and uniform business practices.
This “standardization” dictated what technical requirements went into the military
specifications issued by the Navy to its equipment vendors (R. 1506[2879]).
14
iv. The specified and essential use of asbestos components with
Crane’s Naval valves
The typical Naval Destroyer had two boiler (a/k/a fire) rooms, each
containing approximately 600 valves (R. 1169-84, 5486-87). On the seven ships of
Ronald Dummitt’s service, the vast majority of such valves were manufactured by
Crane (R. 1166-82[2104-05, 2117, 2132, 2144-45, 2154, 2167-69], 5488]).
For each type of valve, Crane created detailed drawings that identified, inter
alia, the specified components, the pressure rating, and the exact system in which
the valve would be used (R. 1163-1166[2090-2102], 1505-06[2878-79],
1509[2891-92], 1519[2931], 3425-83, 3876; SR. 1-50).
3
Asbestos components
were specified on Crane’s drawings for high pressure, high temperature valves
because different services required different materials for the valves to function
properly (R. 326-29[247-48, 253, 256], 3425-83, 3616; SR 1-50). Asbestos
components were thus deemed the “correct” components for “specific services” (R.
3876-80). The purpose of these drawings was to create “standardization,” so the
Navy knew exactly what replacement components were required for each
particular valve in each system (R. 1509[2891-92]). Indeed, Crane admitted that it
knew the perishable asbestos components in these valves would be replaced with
identical components (R. 5450).
3
The system is identified under the “Valve Data” table.
15
For those valves that did specify internal asbestos components, Crane
supplied them with original asbestos gaskets and packing (R. 5431, 5443, 5450).
Crane’s influence and benefit from this use was so high that instead of just
supplying these valves with standard asbestos gaskets, Crane purposefully
“substituted” its own brand of asbestos gasket, Cranite, as an original component
(R. 1163-1166[2090-2102]; SR. 12-13, 15-20, 23-27, 45-49).
Crane also knew that its high temperature valves would be insulated with
asbestos lagging pads deemed “essential to economic operation” (R. 1484[2792-
93], 3869, 3875, 5496). Prior to sale, Crane tested its valves in its own factory
using asbestos lagging pads to attain “satisfactory” status for Naval use (R. 1515-
16[2918-21]). Crane knew specifically that asbestos lagging pads would be used
because, unlike other insulation, the ease of removing and replacing the pads
accommodated the valves’ functional need for routine maintenance (R. 3875;
1169-72[2116-17, 2126-27], 1178[2152], 1336[2475], 5488, 5490, 5497, 5663).
As highlighted by the Appellate Division dissenters, it was a “known
certainty” to Crane that these asbestos components would be used with these
particular valves in this setting (COA 58).
16
v. The danger of asbestos exposure resulted only from the use of the
asbestos components in synergy with Crane’s high pressure, high
temperature valves
The asbestos gaskets and packing were generally comprised of 85% asbestos
and 15% rubber (R. 3879-80, 5443-44). In their natural state, these components
posed no danger of asbestos dust release (R. 929[1574], 986[1685-86], 1605[3114-
15]). Nor did a risk of exposure exist from all usages, as some gaskets in certain
applications “just fell out” when being replaced, meaning the component was
never compromised (R. 1627[3200]; 980[1662-63]).
Conversely, the particular use of these components in Crane’s high pressure,
high temperature valves is what caused them to deteriorate, thereby making the
asbestos friable and compromising the seal (R. 980[1663], 984[1677-78],
1003[1756]). That, in turn, necessitated their vigilant replacement so the valves
could continue to function (R. 1169[2115], 1172[2127], 1501[2859-60], 5488-89).
The replacement process required that the friable gaskets be scraped and wire-
brushed, and the friable packing be pulled with a hook and blasted with
compressed air (R. 1172[2127-29], 1178-80[2150-60], 1355[2252-54], 5488-92).
4
Based on its own drawings, Crane knew precisely which valves would be
used in high pressure, high temperature applications (R. 1163-1166[2090-2102],
1505-06[2878-79], 1509[2891-92], 1519[2931], 3425-83, 3876; SR. 1-50), and it
4
The bonnet faces and valve stems had to be completely free of the deteriorated material
to ensure the new component created a proper seal (R. 1501[2859-60], 5488-92).
17
admitted to knowing that if the component was compromised, a hazard of asbestos
dust release existed (R. 5444-45).
Similarly, asbestos lagging pads posed no danger of asbestos dust release
unless disturbed. This is because the asbestos was internal to the lagging pad:
the dust is created not from the outside of the lagging pad . . .
because they’re painted. When you take that lagging pad off
and you hold it up like this, the inside of that is not painted, and
that’s where all the dust and the particles come from, from the
inside of the jacket, not, not the outside where it’s painted
(R. 5494). These lagging pads were only disturbed, and thus asbestos dust
released, when a worker was required to access the inside of the valve to perform
requisite maintenance (R. 5494; 1169[2116], 1172[2126-27], 1178[2152],
1336[2475], 3875, 5488, 5490). By contrast, other types of insulation remained
stationary as one-time installations, and therefore were not disturbed (R.
1484[2793], 1500[2856-57], 5663).
Significantly, it was “almost impossible” not to be exposed to asbestos from
the normal use of Crane’s valves in this setting (R. 5490).
vi. Mr. Dummitt’s normal use of Crane valves
Between 1960 and 1977, the decedent served on seven ships as a boiler
technician (R. 5482-85). Importantly, Mr. Dummitt testified that his exposure to
asbestos came from having to maintain valves “all the time” (R. 1354[2547-48],
5491, 5498). He was a normal and intended user of Crane’s asbestos-containing
18
valves during their useful lives, although he was, by chance, not the very first user
(R. 1166-82[2104-05, 2117, 2132, 2144-45, 2154, 2167-69], 5488). Thus,
although Crane sold aftermarket asbestos components for its high pressure, high
temperature valves, including its own brand of asbestos gasket, and although it was
Crane’s standard business policy to encourage customers to purchase such
components directly from Crane, the replacement asbestos gaskets and packing,
and the aftermarket insulation for its Naval valves at issue were fortuitously
supplied by other entities (R. 1351[2536]). The lagging pad manufacturer,
however, was unknown (R. 1169[2116], 1353[2545]).
vii. Crane’s conscious choice not to warn for known asbestos hazards
Beginning in the 1930s, Crane had dozens of officers and managerial
employees, who, as members of various trade associations, received information
about asbestos hazards, including that asbestos disease could kill and had a long
latency (R. 756[1180], 1267-74[2372-97], 1412-15[2651-64], 5432-40), and it
admitted to having a broad knowledge that asbestos insulation was hazardous at all
times during the decedent’s exposure period (R. 323[232]). Crane did nothing
with this information, except reap massive profits from its sale of millions of
asbestos products without ever expending resources to test, inspect, or warn. It
even sold Cranite for 50 years without ever testing for asbestos hazards, despite
acknowledging that a hazard existed if the component was disturbed (R. 5433,
19
5441-45). It had every resource and opportunity to test for asbestos hazards,
including a massive research and development department and direct access to the
exact asbestos components at issue (R. R. 1515-16[2918-21], 3656-58, 3721-22,
3754, 3901-08, 3918, 3940-57), but it nonetheless never even tested (R. 5433).
Crane never warned, in either a Naval or private sector setting, about the
dangers of asbestos associated with the normal and intended use of its valves,
including for the original and aftermarket asbestos components it actually placed
into the stream of commerce (R. 5440-43). It admitted that it had actual
knowledge of the lethal hazards of asbestos associated with its valves in the early
1970s, but incredibly it still did not warn (R. 5435, 5440-43). It did not provide
any asbestos labeling with its valves until 1986 – and that was not even a warning,
it was merely a notice that the product contained asbestos (R. 5440-41). It is hard
to imagine any circumstance that would have compelled Crane to warn.
viii. The evidence that a warning from Crane would have reached Mr.
Dummitt and that he would have heeded it
Mr. Dummitt rose to the rank of Master Chief Petty Officer – the highest
rank an enlisted seaman can obtain (R. 1168[2110], 5483, 5512). No one had more
hands-on experience with boiler room equipment (R. 5483). Based on his personal
knowledge and experience, he testified that he would have heeded a warning about
the dangers of asbestos had Crane provided one, including by taking protective
20
measures like wearing a mask and using wetting-down methods to control dust
release, neither of which would have interfered with his duties (R. 5512).
As staff liaison, Mr. Dummitt routinely received communications on safety
issues from manufacturers that he unwaveringly passed along to his subordinate
boiler technicians (R. 5514). In fact, he stated that it was not simply his
“responsibility” to communicate those safety hazards, but his “responsibility to
follow up on it and make sure that they did what they were supposed to do.” (R.
5514). He stated that safety precautions were posted on each piece of equipment,
and in his keen observance of those warnings, he noted that the bottom of the
safety plaques referred the user to the instruction manual for additional precautions
(R. 5512-13), which he routinely referenced (R. 1352[2539], 5513).
Crane’s valves had nameplates, and were provided with instruction
pamphlets that could be updated (R. 1162[2089], 5475), so it had direct and
continuing channels to warn end users. Despite the Navy’s “excruciating detail” in
prescribing technical requirements (R. 1506[2879]), not a single document was
presented at trial showing that the Navy ever proscribed or prescribed asbestos
warnings in any fashion, as admitted by Appellant (R. 5446). To the contrary, the
Navy actually expected manufacturers to provide warnings for equipment
operations “which [would] result in personal injury or loss of life if not correctly
followed” (R. 1486-88[2800-07], 1499[2852], 5447).
21
B. PERTINENT PROCEDURAL HISTORY
i. The provident preclusion of speculative expert opinion
Appellant attempted to elicit opinion testimony from its expert, Admiral
Sargent, that if Crane hypothetically would have attempted to give a warning at
any time between 1940 and 1980, the Navy would not have accepted it under any
circumstance. Supreme Court properly precluded this as speculative (R. 75-76,
1520-21[2938-40]). The Appellant Division dissenters mistakenly believed this
opinion was precluded on relevancy grounds (COA 62-63), likely on account that
this issue was not actually briefed by the parties. The extent that Appellant raised
this issue in its Appellate Division Opening Brief was one passing reference in its
“Statement of Facts” section (see App. First Dept. Brief at 11-12, 42-47)
The one question posed to Admiral Sargent that was providently precluded
on relevancy grounds, however, addressed a single correspondence from the Navy
to an unrelated manufacturer about product design, not warnings, which in any
event post-dated the decedent’s last date of exposure by seven years (R. 1519-20).
ii. Supreme Court’s charge
Supreme Court instructed the jury to determine foreseeability (R. 2031), not
to determine whether a legal duty existed in the first instance, since Supreme Court
had already properly made that determination as an issue of law (R. 1769[3490]).
The jury charge actually mirrored the law as set forth by this Court in Rastelli (79
22
N.Y.2d 289, supra at 297) (R. 2031[4068]). The ensuing instruction directed the
jury to adjudicate the issues of foreseeable use and foreseeable harm (R.
2031[4068-69]), both bedrock precepts for determining breach of a duty to warn.
As to causation, Supreme Court repeatedly charged the jury that Plaintiff
had the burden of proof at all times (R. 2032-34[4073-81], 2043[4114]). Appellant
objected to the form of the heeding presumption charge, and expressly requested
that it be charged as a rebuttable heeding presumption (R. 2045[4122], 2046[4127-
28]). Supreme Court agreed, underscoring the rebuttable nature of the heeding
presumption, while making sure to reiterate that the burden still remained with
Plaintiff (2048[4135-36]). Appellant has, therefore, forfeited appellate review of
this issue, since the charge it requested was given.
iii. Supreme Court’s duty determination
Supreme Court determined that “Crane’s duty is not based on foreseeability
alone,” but on the considerations that “strengthen the connection” between
Appellant’s valves and the asbestos components (R. 57-58, 62). Clearly, the duty
test employed was not, as Appellant asserts, a foreseeability test; it was based on
the interpretation of the Rastelli factors adopted in Surre v. Foster Wheeler LLC
(831 F.Supp.2d 797, supra at 801) – Appellant’s own seminal case (COA 43-44).
23
iv. The Appellate Division decision
In a 3-2 split, the Appellate Division, First Department affirmed the
judgment awarding Plaintiff money damages upon the jury verdict (COA 10-11).
5
The two-Justice dissent was limited to the issue of causation, specifically taking
issue with the rebuttable heeding presumption charge and the (unbriefed)
preclusion of Admiral Sargent’s opinion testimony (COA 52-66). All five Justices
agreed that a duty to warn could be imposed under New York law in synergistic
component-use cases and that one was properly imposed under the facts of this
case. Far from creating a new rule, the Appellate Division merely blended the
Rastelli considerations into a cogent framework of whether the manufacturer had a
“sufficiently significant role, interest, or influence in the type of component used
with its product after it enters the stream of commerce” (COA 41). The Appellate
Division was clear that this expression was nothing more than what Rastelli and its
progeny “together stand for” (COA 41).
This appeal ensued as of right (COA 7-9).
5
The decision also addresses the appeal in Konstantin v 630 Third Avenue Assoc., et al.,
which was an in extremis case joined for trial with, among others, this case. Much of the
decision, therefore, is irrelevant to this appeal.
24
ARGUMENT
I. IN THIS NEGLIGENCE-BASED FAILURE-TO-WARN CASE, A
DUTY TO WARN WAS PROPERLY IMPOSED ON CRANE UNDER
AN ANALYSIS OF THE FACT-SPECIFIC, POLICY-LADEN
CONSIDERATIONS ESPOUSED BY THIS COURT’S PRECEDENTS
AND COGENTLY SYNTHESIZED BY THE APPELLATE DIVISION
A. The Appropriate Test To Determine Whether A Manufacturer
Owes Its Product User A Duty To Warn In Synergistic
Component-Use Cases Is To Weigh Certain Policy-Laden
Considerations On A Fact-Specific Basis
Under our jurisdiction’s negligence-based approach to failure-to-warn
claims, whether a manufacturer owes a duty to warn for the dangers attendant to
the synergistic use of its product with a component supplied by a third-party should
be determined, in the first instance, by weighing various policy-driven
considerations under the circumstances of each case, rather than by an absolute
“stream of commerce” test focused solely on who supplied the component part.
Appellant advocates for this bright-line, single factor test because it is the only
scenario that would entitle it to escape liability for its egregious failure to warn. In
so doing, however, Appellant disregards the law by first attempting to hide its
bright-line approach under the guise of a newborn “control-based” approach, and
second, by misreading New York precedents as conforming to that approach.
25
i. Appellant’s newly-articulated “control-based” test is
patently baseless and nothing more than a bright-line,
single-factor test in disguise
Despite holding steadfast throughout this case to an argument that the sole
factor in determining whether it owed a duty to warn was whether it placed into the
stream of commerce the specific asbestos components of its valves that, by chance,
were the ones to which the decedent was exposed, Appellant has now recognized
the tenuous nature of that approach and has chosen, instead, to advance a newly-
formulated “control-based approach” (App. Brief at 20-40). Appellant’s new
argument, however, is nothing more than a thinly-veiled attempt to present a more
palatable variant of its bright-line approach. This new proffer suffers from the
same – and actually additional – flaws.
Appellant fails to cite a single New York precedent adopting a “control-
based” approach for determining duty in any products liability context. To the
contrary, liability is imposed on parties downstream of a manufacturer (i.e.,
wholesalers, retailers) despite their lack of control over, possession of, or access to
the product. See Brumbauch v CEJJ, Inc., 152 A.D.2d 69, 71-72, 547 N.Y.S.2d
699 (3d Dept., 1989) (mere marketer of product, not within distributive chain, can
be liable even though it did “not take actual possession, title or control of the”
product) (emphasis added); Mead v Warner Pruyn Division, 57 A.D.2d 340, 340-
41, 394 N.Y.S.2d 483 (3d Dept., 1977) (retailer liable even for goods “over which
26
he has no control as to hidden or latent defects”).
6
Such liability rests on
considerations of policy, including that it acts as an added incentive for safety. See
Codling v. Paglia, 32 N.Y.2d 330, 341, 298 N.E.2d 622 (1973); Mead, supra.
Thus, since products liability is rooted in policy rather than control, there is no
basis to adopt Appellant’s newborn “control-based” approach for a duty inquiry in
synergistic component-use cases. This becomes even more apparent when viewed
against this Court’s precedents regarding (1) duty generally, (2) products liability
as a whole, (3) how “defective products” in warnings cases are defined, and (4) the
duty to warn specifically in synergistic component-use cases.
ii. The inherently fact-specific nature of a duty analysis in
negligence-based products liability claims supports a
“weighing of factors” test rather than a bright-line test to
determine whether to impose a duty to warn in synergistic
component-use cases
Appellant’s bright-line rule – cloaked as a control test – is discordant with
this Court’s treatment of both duty generally and products liability law as a whole.
Duty is “a legal term by which we express our conclusion that there can be
liability.” DeAngelis v. Lutheran Med. Center, 58 N.Y.2d 1053, 1055, 462
N.Y.S.2d 626 (1983). It requires a person “to conform to a certain standard of
conduct, for the protection of others against unreasonable risks.” Prosser and
6
Appellant relied on Brumbauch before the Appellate Division but conveniently omits it
in its Opening Brief here, likely on account of its incompatibility with Appellant’s newfound
“control” theory.
27
Keeton, Torts §§ 30 & 53, at 164, 356 (5th ed.). It is a “policy-laden” analysis
(Espinal v Melville Snow Contrs., 98 N.Y.2d 136, supra at 139), requiring the
balancing of interests, including the wrongfulness of the defendant’s actions and
the reasonable expectation of care owed. Palka v Servicemaster Mgt. Servs. Corp.,
83 N.Y.2d 579, supra at 585; Turcotte v. Fell, 68 N.Y.2d 432, 437, 502 N.E.2d 964
(1986). It is “not something derived or discerned from an algebraic formula, [but
is] coalesce[d] from vectored forces including logic, science, [and] weighty
competing socioeconomic policies…” Palka, supra at 585. As such, rigid
formalisms have little, if any, place in a duty analysis.
Buttressing this precept is that unlike some jurisdictions that subscribe to a
pure strict liability approach to failure-to-warn cases, failure-to-warn in New York
is a negligence-based claim. See Enright v. Eli Lilly & Co., 77 N.Y.2d 377, supra
at 385-87 (failure to warn claim, “though . . . couched in terms of strict liability, is
indistinguishable from a negligence claim,” such that “[c]oncepts of reasonable
care and foreseeability are not divorced from this theory of liability…”); see also
Denny v. Ford Motor Co., 87 N.Y.2d 248, 258, 662 N.E.2d 730 (1995) (defective
design “is a ‘negligence-inspired’ approach”), rearg. denied 87 N.Y.2d 969; P.J.I.
2:120, vol. 1A at p.709 (2014 ed.) (“‘strict products liability’ label is actually a
misnomer when applied to claims based on design defect and inadequate
warning,…”); cf. Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 385 n.6, 198
28
P.3d 493 (Wash., 2008) (contrasting Washington’s true strict liability rule with
other jurisdictions “that apply a more negligent-like approach to failure-to-warn
claims”).
7
Consequently, a duty to warn inquiry is “intensely fact-specific.” Liriano,
supra at 240, 243; Di Ponzio v. Riordan, 89 N.Y.2d 578, 583, 657 N.Y.S.2d 377
(1997) (“[t]he nature of the inquiry depends, of course, on the particular facts and
circumstances in which the duty question arises”). This, in turn, renders a bright-
line approach to duty flatly inconsistent with our jurisprudence. See Espinal, supra
at 139 (“‘policy-laden’ nature of the existence and scope of a duty generally
precludes any bright-line rules…”).
Indeed, this Court has consistently declined to make bright-line
pronouncements in the context of our negligence-based products liability law,
since doing so would inexorably lead to harsh results. See, e.g., Hoover v. New
Holland North America, Inc., 23 N.Y.3d 41, 59, 11 N.E.3d 693 (2014) (permitting
manufacturers to “automatically avoid liability” in design defect cases where a
safety device is removed post-sale but not replaced would create “[s]uch a broad
rule” that it “would lessen the manufacturer’s duty to design effective safety
devices that make products safe for their intended purpose and ‘unintended yet
7
The Braaten Court also rejected the Restatement (Third) of Torts (Id at 384, n.5),
whereas this Court has averred that “New York law is consistent with the Restatement [Third]”.
Speller v. Sears, Roebuck and Co., 100 N.Y.2d 38, 41-42, 790 N.E.2d 252 (2003).
29
reasonably foreseeable use’”) (emphasis in original); Liriano, supra at 242 (“[t]he
fact-specific nature of the inquiry into whether a particular risk is obvious renders
bright-line pronouncements difficult”); Cover v. Cohen, 61 N.Y.2d 261, 270, 473
N.Y.S.2d 378 (1984) (“[w]e decline the single standard invitation [regarding the
admission of subsequent remedial measures] because of the different inquiries
involved in the different types of cases”); Micallef v. Miehle Co., 39 N.Y.2d 376,
385, 348 N.E.2d 571 (1976) (abrogating a bright-line patent-danger rule because
“[i]ts unwavering view produces harsh results…”).
Therefore, Appellant’s proffered bright-line approach is wholly
incompatible with how both duty and products liability law have been treated by
this Court. Against this backdrop, Appellant’s bright-line rule is flawed at its core
because it rests erroneously on an absolute strict liability definition of a “defective
product” rather than a negligence-based one.
iii. In a negligence-based failure-to-warn case, the stream of
commerce inquiry asks simply whether a manufacturer
distributed a product without an adequate warning for a
danger attendant to its use, not necessarily whether it
distributed the specific harmful agent that was released
upon its product’s synergistic use with a component
Appellant distorts the stream of commerce inquiry by conflating a “defective
product” with a “harm-causing” agent or toxin (App. Brief at 24). In a warnings
context, these concepts are not universally equivalent.
30
Appellant acknowledges the well-settled precept that a manufacturer who
places into the stream of commerce a defective product which causes injury may
be liable for such injury (App. Brief at 24). See Liriano, 92 N.Y.2d 232, supra at
237; Codling v. Paglia, 32 N.Y.2d 330, 340-41, 298 N.E.2d 622 (1973). Yet
Appellant disregards the ensuing principle, which is that in a warnings case, a
“defective product” is defined as one that fails to contain an adequate warning
regarding a danger incident to its use. Liriano, supra at 237; Rastelli, supra at 297.
As a result, it is “not essential” that the defendant’s product itself contain a
specific defect or harmful agent for it to be deemed a “defective product” based on
its lack of warning for a danger incident to its use. Alfieri v. Cabot Corp., 17
A.D.2d 455, 460, 235 N.Y.S.2d 753 (1st Dept., 1962), aff’d 13 N.Y.2d 1027; cf.
Restatement (Second) of Torts, Section 402A, cmt. h (1965). Indeed, in a
negligence-inspired design defect context, this Court has avowed that under the
“traditional test” of a defective product, that the injurious component “was a
replacement and not the original is not dispositive…” Sage v. Fairchild-
Swearingen Corp, 70 N.Y.2d 579, supra at 587 (emphasis added); see also Denny
v. Ford Motor Co., 87 N.Y.2d 248, supra at 258-59 (distinguishing a “defect” in
“true ‘strict’ liability” from a “defect” in negligence).
Here, Appellant’s entire “stream of commerce” argument is inappropriately
predicated on a pure strict liability approach that would narrowly restrict the
31
“defective products” at issue to only the exact asbestos components to which the
decedent was exposed, notwithstanding that his exposure came only as a direct
result of his use of Appellant’s valves in their normal, intended, and required
fashion. Simply put, Appellant’s valves were “defective” under New York law
because they were placed into the stream of commerce without a warning for the
unavoidable dangers of asbestos exposure associated with their normal use, i.e., the
required replacement of the perishable components to maintain utility, which also
mandated removal of essential asbestos lagging pads (R. 3875, 5449-50).
8
This provides a key perspective to the New York precedents establishing
that a duty to warn can exist under the genus of failure-to-warn cases at issue.
iv. This Court’s precedents and their progeny clearly establish
that a duty to warn in synergistic component-use cases
turns on a weighing of fact-specific, policy-laden
considerations
In Rastelli v. Goodyear Tire & Rubber Co. (79 N.Y.2d 289, supra at 297),
this Court unanimously declared that “[a] manufacturer has a duty to warn against
latent dangers resulting from foreseeable uses of its products of which it knew or
should have known.” Accord Liriano, 92 N.Y.2d 232, supra at 237. Far from
setting forth a bright-line “stream of commerce” rule, the Rastelli Court considered
8
As discussed infra, Appellant’s valves were supplied with original asbestos
components, so under any interpretation of a stream of commerce rule, these valves were
defective when sold.
32
multiple factors in determining whether to impose a duty to warn on a
manufacturer for the post-sale use of its product with a third-party component,
including whether (1) the manufacturer’s product was “sound,” (2) the component
at issue was merely “compatible for use” with the manufacturer’s product or
something more than compatible, (3) its product created or contributed to the
defect at issue, (4) it exercised control over the production of the component or
ever marketed it, (5) it placed the component into the stream of commerce, and (6)
it derived a benefit from the sale of the component. Contrary to Appellant’s
newly-formulated assertion, had this Court intended Rastelli to stand for a
“control-based” rule, it would not have considered additional factors.
Strikingly, despite Appellant’s exaltation of the “rule of Rastelli” (App.
Brief at 31), not once in its 81-page Opening Brief is the actual holding of Rastelli
even mentioned:
[u]nder the circumstances of this case, we decline to hold that
one manufacturer has a duty to warn about another
manufacturer's product when the first manufacturer produces a
sound product which is compatible for use with a defective
product of the other manufacturer.
Id. at 297-98. By correlation, where, as here, the “circumstances of th[e] case”
establish that the defendant’s product was not sound and that the third-party
components were both “essential” and “specified” for use with the defendant’s
33
product, Rastelli compels the imposition of a duty to warn. Appellant’s
conspicuous omission of the Rastelli holding is telling.
Moreover, the two courts that sought to unite the Rastelli considerations into
a synthesized framework did not espouse anything resembling a control-based
approach. In Surre, a case heavily relied upon by Appellant, the Southern District
of New York acknowledged that a duty to warn could exist in these species of
failure-to-warn cases and expressed the weighing of the Rastelli considerations as
whether “additional circumstances strengthen the connection between the
manufacturer's product and the third party's defective one.” Surre v. Foster
Wheeler LLC, 831 F.Supp.2d 797, supra at 801.
9
The examples of “additional
circumstances” noted therein that warranted the imposition of a duty included, like
here, where the components were necessary or specified for use with the
defendant’s products. See id. at 801. Incredibly, Appellant seeks to rely on the
fact-specific result in Surre without acknowledging either that it was a fact-specific
result (see id. at 804 (“on this record, there are not sufficient factual grounds” for a
duty) (emphasis added)), or that, here, Supreme Court applied Surre’s “strengthen
9
There, where the record established that the insulation was nothing more than
compatible for use with the equipment, the issue was phrased as “the extent to which a
manufacturer has a duty to warn against the dangers of a third party's product that might be used
in conjunction with its own.” Id. at 801 (emphasis added). Here, conversely, the use was a
“known certainty” (COA 58).
34
the connection” framework to determine that Appellant owed a duty to warn (R.
57, 62); see App. Brief at 31-33.
The Appellate Division chose to express the fact-specific weighing of the
Rastelli factors as whether the manufacturer has a “sufficiently significant role,
interest, or influence in the type of component used with its product after it enters
the stream of commerce” (COA 41). Contrary to Appellant’s contention, the
Appellate Division did not create a novel or “amorphous” test (App. Brief at 22); it
merely set forth a composite of the factors identified by the Rastelli Court. Indeed,
the Appellate Division was quite clear that it was simply synthesizing the existing
precedents into a proposition that “[t]hese cases…together st[oo]d for…” (COA
41) (emphasis added).
In short, irrespective of how this analysis is framed, multiple considerations
must be weighed in a duty inquiry involving this genus of failure-to-warn cases –
considerations that embody the policy-driven goals of fixing duty. See Prosser and
Keeton, Torts § 53, at 358 (5th ed.) (duty is not sacrosanct but is “only an
expression of the sum total of those considerations of policy which lead the law to
say that the plaintiff is entitled to protection”).
Significantly, a “weighing of factors” test is entirely consistent with the test
for determining a continuing duty to warn. See Liriano, supra at 240 n.3 (“post-sale
duty of a manufacturer to warn involves the weighing of a number of factors …”)
35
(emphasis added) (citing Cover v Cohen, 61 N.Y.2d 261, supra at 275-76); see also
Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, 644, 478 N.Y.S.2d 375 (4th Dept.,
1984) (“imposition of the duty to give a warning of some kind involves a balancing
test…”). It would be wholly incongruous to treat a post-sale duty to warn inquiry
as a weighing test but a post-sale component-use duty inquiry as a bright-line test.
To this end, this Court has addressed or referenced this species of failure-to-
warn claims twice since deciding Rastelli. See Appalachian Ins. Co. v. General
Electric Co., 8 N.Y.3d 162, 166-67, 863 N.E.2d 994 (2007) (noting, in an
insurance dispute action, that the typical asbestos suit was based on manufacturer’s
failure to warn about the use of its turbines with asbestos insulation manufactured
by others), rearg. denied 8 N.Y.3d 954; Sprung v MTR Ravensburg, Inc., 99
N.Y.2d 468, 475, 758 N.Y.S.2d 271 (2003). In Sprung, this Court concluded that a
lathe manufacturer had no duty to warn for the defect in a retractable floor
component. Although not citing to Rastelli, this Court weighed the
aforementioned considerations, including the factors unaffiliated with the “stream
of commerce” principle. See Sprung, supra (“[n]or can it be said on this record that
the retractable floor is a necessary component part of the lathe”). Thus, this
Court’s most recent decisions support a “weighing of factors” approach.
Similarly, in addressing fact patterns that could fall within the ambit of
Rastelli, the intermediate appellate courts have been consistent in interpreting
36
Rastelli as requiring a fact-specific, “weighing of factors” test, rather than an
automatic, bright-line test. See, e.g., In re Eighth Judicial Dist. Asbestos Litig.
[Suttner v Crane Co.], 115 A.D.3d 1218 (4th Dept., 2014), aff’ing 2013 WL
9816609 (Sup. Ct., Erie Co., 2013) (finding, per the adopted Supreme Court
decision, that Crane owed a duty to warn for recommended asbestos gaskets and
packing used with its steam valves); In re Eighth Judicial Dist. Asbestos Litig.
[Drabczyk], 92 A.D.3d 1259, 938 N.Y.S.2d 715 (4th Dept., 2012), lv denied 19
N.Y.3d 803 (citing Rastelli when noting, in dictum, that it was error to have
charged the jury on a duty to warn where commercial plant valves were merely
compatible for use with asbestos insulation) (SR. 74-75, 82); Penn v. Jaros, Baum
& Bolles, 25 A.D.3d 402, 809 N.Y.S.2d 6 (1st Dept., 2006) (expressly
distinguishing Rastelli in finding that alarm manufacturer had a duty to warn where
alarm used in conjunction with a third-party carbon dioxide component);
Berkowitz v. A.C. & S., Inc., 288 A.D.2d 148, 733 N.Y.S.2d 410 (1st Dept., 2001)
(expressly distinguishing Rastelli in finding an issue of fact as to a Naval pump
manufacturer’s duty to warn where defendant knew asbestos insulation would be
used as a specified component of its pumps, and the pumps could not be operated
safely without it); Rogers v. Sears, Roebuck & Co., 268 A.D.2d 245, 701 N.Y.S.2d
359 (1st Dept., 2000) (expressly distinguishing Rastelli using the “compare” signal
in finding that a grill manufacturer had a duty to warn where plaintiff was injured
37
by third-party replacement propane tank); Village of Groton v. Tokheim Corp.,
202 A.D.2d 728, 608 N.Y.S.2d 565 (3d Dept., 1994), lv. denied 84 N.Y.2d 801
(“[w]e are of the view that the case at bar falls within the category of cases
distinguished by the Rastelli court” where defendant’s valve was used in
combination with a valve supplied by a third-party); Tortoriello v. Bally Case, Inc.,
200 A.D.2d 475, 477, 606 N.Y.S.2d 625 (1st Dept., 1994) (citing Rastelli using the
“cf.” signal in finding, “[u]nder the circumstances of th[at] case,” no duty to warn
where the only evidence in the record was that a third-party flooring component
was merely compatible for use with the defendant-manufacturer’s freezer); see also
Surre v. Foster Wheeler LLC, 831 F.Supp.2d 797, supra (finding, “on this record,
there are not sufficient factual grounds” to show that Crane owed a duty where its
Pacific brand boilers were not supplied with asbestos insulation, it was not
specified or required, and there was no other evidence showing the boilers’
“connection” to the components) (emphasis added); Gitto v. A.W. Chesterton,
2010 U.S. Dist. LEXIS 144568 (S.D.N.Y., 2010) (finding that Crane owed a duty
to warn in a Naval valve case and Rastelli was merely factually inapposite). Even
decisions decided before Rastelli have concluded that distribution of the specific
injurious component – or control over it – is not dispositive of a duty to warn. See,
e.g., Hess v. Mack Trucks, 159 A.D.2d 557, 552 N.Y.S.2d 423 (2d Dept., 1990);
Young v. Robertshaw Controls Co., 101 A.D.2d 670, 476 N.Y.S.2d 24 (3d Dept.,
38
1984); Baleno v. Jacuzzi Research, Inc., 93 A.D.2d 982, 461 N.Y.S.2d 659 (4th
Dept., 1983). The fact-specific nature of these precedents wholly undermines
Appellant’s interpretation of New York law.
Indeed, where Appellant’s bright-line approach manifestly falters is in its
attempt to wedge Rogers (supra) and Berkowitz (supra) into its pretextual “control-
based” scheme (see App. Brief at 33-34). In Rogers, a duty to warn was imposed
on a manufacturer for the use of its grill in conjunction with a replacement propane
tank that the manufacturer did not place into the stream of commerce. The case
fell outside of Rastelli’s orbit because the grill was not sound– it was sold
originally with a dangerous, perishable propane tank but no warning – and the like-
kind replacement tank was not merely compatible for use with the grill – it was
necessary. Notably, consistent with how a “defective product” is defined in a
warnings case (see Section I(A)(iii), supra at 29-31), the First Department avowed
that the manufacturer owed a duty to warn for the dangers inherent in the “use of
the grill regardless of any defects.” Id. at 246 (emphasis added).
More strikingly, the only possible way for Appellant to explain the factually
apposite Berkowitz is to acknowledge that a duty to warn can exist under New
York law even in instances where the defendant did not supply the injury-
producing component (see App. Brief at 34-35, admitting that “liability could
lie…”). And, indeed, what happened here is precisely what Appellant
39
contemplates in its discussion of Berkowitz, namely, Supreme Court concluded
that a duty to warn existed under “the facts of th[is] particular case” on the full trial
record (App. Brief at 34) (R. 52-62). Thus, Appellant’s treatment of Rogers and
Berkowitz is, at a bare minimum, a tacit admission that New York does not adhere
to a bright-line, single-factor approach.
Further significant is that this Court has expressly rejected an absolute
“stream of commerce” approach in negligence-based design defect claims where
the plaintiff was injured as a result of a third-party replacement component. See
Sage, 70 N.Y.2d 579, supra. Since the considerations for imposing a duty are more
cogent in a warnings case than in a design case, as it is easier and less costly to
warn (see Liriano, supra at 239-40), the same result is instructed here.
Thus, the appreciable weight of – if not all – appellate authority firmly
supports a case-specific, “weighing of factors” test to determine whether to impose
a duty to warn in synergistic component-use cases.
Appellant has not cited a single warnings case from this Court (or an
intermediate appellate court) supporting a bright-line approach. Instead,
Appellant’s Opening Brief is replete with citation to California and Washington
caselaw – two jurisdictions that have markedly different failure-to-warn
jurisprudence. See, e.g., O’Neil v. Crane Co., 53 Cal.4th 335, 350 n.6, 351-52, 354,
266 P.3d 987 (Cal. 2012) (relying on a “line of Court of Appeals cases” to
40
recognize, under a pure strict liability approach, “a bright-line legal distinction”
imposing failure-to-warn liability only on the entity that distributes the particular
hazardous agent);
10
Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 385 n.6,
198 P.3d 493 (2008) (contrasting Washington’s strict approach with other
jurisdictions “that apply a more negligent-like approach to failure-to-warn
claims”).
11
Informatively, this Court has previously rejected Washington’s
approach to products liability. See Denny v. Ford Motor Co., 87 N.Y.2d 248,
supra at 260 (rejecting “what other jurisdictions have done,” like Washington, to
create a “single analytical test” for design defect and breach of warranty claims).
To this end, Appellant’s reference to a purported “majority rule nationwide” is a
10
Appellant seems to acknowledge that a duty could exist under New York law where the
component is necessary (App. Brief at 33-34), but still asserts that California law is similar to
New York notwithstanding California’s unwillingness to accept that very proposition. See
O’Neil, 53 Cal.4th 335, supra at 350, n.6. (rationale against imposing a duty to warn under
California law would exist even where the consumable component was necessary).
11
Notably, even these two jurisdictions have recognized the inequitable consequences
stemming from the bright-line rules they adopted. See Macias v. Saberhagen Holdings, Inc., 175
Wash.2d 402, 282 P.3d 1069 (Wash. 2012) (majority struggled to rationalize its conclusion that
respirator manufacturer owed a duty to warn for exposure to asbestos when the worker cleaned
masks, although the manufacturer did not place the asbestos into the stream of commerce, which
prompted the dissent to aver that “this was exactly the issue we confronted in Simonetta and
Braaten”) (emphasis in original); Shields v. Hennessy Industries, Inc., 205 Cal.App.4th 782, 140
Cal.Rptr.3d 268 (Cal.App. 1st Dist., 2012) (endeavoring to distinguish O’Neil in finding brake
grinder manufacturer potentially liable even though it did not place the asbestos brakes into the
stream of commerce).
41
grave overstatement – two jurisdictions rooted in pure strict liability rather than
negligence is scarcely evidence of a majority rule (App. Brief at 21).
12
In any event, this Court’s precedents and their New York progeny plainly
support a “weighing of factors” approach to a duty to warn analysis in synergistic
component-use scenarios. Cf. Palka, supra at 588 (a balancing test is “the
12
The other non-New York cases cited by Appellant cannot comprise a “majority rule”
because they either do not address the question of duty at all (see, e.g., Whiting v. CBS Corp., 83
Mass.App.Ct 1113 (Mass. App. Ct., 2013) (decided on causation); Lindstrom v. A-C Prod. Liab.
Trust, 424 F.3d 488 (6th Cir., 2005) (same)), or actually conclude that a duty does exist in these
circumstances (see, e.g., Hughes v. A.W. Chesterton Co., 435 N.J.Super. 326, 89 A.3d 179 (N.J.
A.D., 2014) (finding a duty but decided on causation grounds)), or are improperly predicated on
causation principles and in any case contrasted by decisions from the same court. See, e.g.,
Conner v Alfa Laval, Inc., 842 F.Supp.2d 791 (E.D.Pa., 2012) (relying on Lindstrom’s causation
decision); but see Dalton v 3M Co., 2011 WL 5881011 (E.D.Pa., 2011) (R. 5470) (recognizing
that duty is a peculiar issue of state law); In re Asbestos Products Liability Litigation (No. VI)
[Hoffeditz], 2011 WL 5881008 (E.D.Pa., 2011) (vehicle manufacturer duty to warn for
replacement asbestos brakes); Chicano v. General Electric Company, 2004 WL 2250990
(E.D.Pa., 2004). Recently, a Maryland intermediate appellate court concluded that no duty
existed in a similar context. But that determination was made – in sharp contrast to New York’s
negligence-based approach – pursuant to “a bright line in the law of strict liability,” and it even
acknowledged that specification or recommendation of the component, like here, could lead to a
duty. May v Air and Liquid Systems Corp., __ A.3d __, 2014 WL 4958163 at *2, 4 (Md. Ct. Sp.
App., 2014). Indeed, in so doing, the Maryland court contrasted New York law. See id. at *5.
Thus, a few decisions, all rooted in pure strict liability, do not constitute a majority view
nationwide. Courts in other jurisdictions have concluded, like New York, that a duty can exist in
these circumstances under negligence principles. See, e.g., Quirin v. Lorillard Tobacco
Company, __ F.Supp.2d __, 2014 WL 585090 (N.D. Ill., 2014); Sweredoski v Alfa Laval, Inc.,
2013 R.I. Super. LEXIS 185 at *23 (R.I. Super. Ct., 2013) (“weight of jurisprudence across the
country, including in Rhode Island, suggests that [Crane] cannot categorically avoid liability for
a plaintiff’s injuries for the sole reason that those injuries were directly caused by exposure to a
third party’s replacement parts”); Phillips v. Hoffman/New Yorker, Inc., 2013 WL 4715263
(Del.Sur.Ct., 2013); Sether v. Agco Corp., 2008 WL 1701172 at *3 (S.D.Ill., 2008); Lindquist v.
Buffalo Pumps, Inc., 2006 WL 3456346 at *2 (R.I.Super.Ct., 2006); Branon v. Gen. Elec. Co.,
2005 WL 1792122, at *2, n.6 (Ky.App.Ct., 2005). The Amici Brief from Business Council of
New York State, et al. – which is filed on behalf of organizations that seek to erode tort law –
cites numerous jurisdictions where mere splits exist on this issue (see Amici Brief at 17-19,
citing Pennsylvania, Connecticut, Delaware, and Federal Maritime Law). That certainly does not
support a majority rule nationwide.
42
traditional, complex and particularized analytical path” for fixing duty). Although
Appellant’s bright-line rule would admittedly provide simple guidance on this
issue, the role of our courts to decide difficult but equitable elements of law should
not be negated on the mere basis of ease. Cf. Liriano, 92 N.Y.2d 232, supra at 240
n.2 (although the elements of a failure-to-warn claim may be difficult to apply, that
does not “negate the duty to warn against foreseeable product misuse which is well
established in this Court's precedents as well as contemporary products liability
jurisprudence”). This is especially true where a bright-line rule would create a
greater injustice by automatically cutting off many deserving plaintiffs with valid
claims, while concomitantly permitting manufacturers to escape liability even
where, like here, they never even tested, inspected, or attempted to warn. Fairness
should not be sacrificed for simplicity.
v. A “weighing of factors” test provides a provident limit to a
product manufacturer’s liability
Importantly, a weighing test denotes an appropriate limit to a product
manufacturer’s liability. Appellant’s spurious attempt to make this appear as a
limitless liability scenario goes so far as to assert that Supreme Court extended a
manufacturer’s duty to “any product, sold by any other entity, at any point in time,
so long as it was ‘foreseeable,’ in hindsight, that the product could be used with or
43
near its own” (App. Brief at 26).
13
That is not even remotely what happened here,
as Supreme Court relied on Surre – Appellant’s own seminal case – to conclude
that “Crane’s duty is not based on foreseeability alone,” but on the factors that
“strengthen the connection” between Appellant’s valves and the asbestos
components (R. 57, 62). Since a pure foreseeability test was not applied here, any
concomitant fear of limitless liability is a nullity.
Furthermore, the Appellate Division used the qualifying phrase “sufficiently
significant” to limit the instances where a manufacturer’s “role, interest, [or]
influence” in the use of the component with its product could potentially rise to the
level of warranting a duty (COA 41). This qualification limits a manufacturer’s
duty to a controllable degree and provides an appropriate balance between
manufacturers’ liability exposure and the rights of unassuming plaintiffs injured
from latent dangers resulting from synergistic component-use scenarios.
Indeed, as recognized by the Appellate Division (COA 38-44), the limits on
liability from this approach are already exemplified by Rastelli and its progeny.
Compare Suttner, Penn, Berkowitz, Rogers, Gitto (all finding a duty), with
13
Amici Business Council, et al. expands this assertion to a level of absurdity,
notwithstanding their previous acknowledgment of an inherent limit on liability provided by
Plaintiff’s actual approach. Compare Amici Brief at 11-12 (distinguishing necessary or specified
components from those that merely “could be” used), with Amici Brief at 36-38 (misrepresenting
Plaintiff’s approach as a rule that would create an automatic duty to warn for any product used in
the mere vicinity of any other product in any context).
44
Rastelli, Drabczyk, Tortoriello, Surre (all finding no duty). Therefore, Appellant’s
fear of limitless liability is wholly unfounded.
B. An Analysis Of The Policy-Laden Factors Unequivocally
Demonstrates That A Duty To Warn Was Properly Imposed On
Crane Under The Circumstances Of This Case
Under the overwhelming facts of this case and the attendant public policy
justifications, this Court should affirm the imposition of a duty to warn.
i. The considerations, and their policy-driven underpinnings,
overwhelmingly support a duty to warn in this case
The pertinent duty considerations include whether (1) the manufacturer’s
product was “sound,” (2) the component at issue was merely compatible for use
with the manufacturer’s product or something more, (3) the manufacturer’s product
created or contributed to the defect at issue, (4) the manufacturer exercised control
over the production of the component or ever marketed it, (5) the manufacturer
placed the component into the stream of commerce, and (6) the manufacturer
derived a benefit from the sale of the component. Additionally, as in all
negligence-based duty inquiries, the wrongfulness of Appellant’s actions and the
decedent’s reasonable expectation of care should be considered. See Palka, 83
N.Y.2d 579, supra at 585.
45
1. Crane’s valves were indisputably not sound products, and
a clear duty to warn existed at the time of sale
There is no dispute that hundreds of Crane’s valves to which the decedent
maintained were supplied to the Navy with original asbestos components,
including Cranite (R. 1160-64[2081-82, 2091-96], 1509[2893-94], 5443; SR. 12-
13, 15-20, 23-27, 45-49). Crane admitted that these specified consumable
components needed to be vigilantly replaced with like-kind components just so the
valves could continue to function (R. 5442-45, 5449-50); (App. Brief at 14), and it
agreed that the removal process posed a hazard of asbestos exposure (R. 5445).
But Crane never even attempted to warn against the dangers of replacing the
components it actually distributed.
Unlike the sound tire in Rastelli that was supplied with a nondefective rim
which was randomly replaced with a defective rim, it cannot be disputed that
Crane’s asbestos-containing valves were not sound products. See Rogers, 268
A.D.2d 245, supra (duty imposed where grill supplied originally with dangerous,
consumable propane tank but no warning, and injury resulted from like-kind
replacement tank). This is perhaps why Appellant does not even attempt to argue
that its valves were “sound” under Rastelli. Id. at 297-98
Nor can Appellant dispute that a duty existed when these valves were sold to
warn the first user of the dangers of removing the original asbestos components. It
is patently absurd to assert, as Appellant does, that this existing duty vanished once
46
the original components were removed and replaced with identical components –
particularly where that replacement process was mandated by the very function and
design of the valve. Public policy cannot permit an unsound product to be
rendered sound due to its normal function. See Sage, 70 N.Y.2d 579, supra at 587
(“to insulate a manufacturer under such circumstances would allow it to escape
liability for designing flimsy parts secure in the knowledge that once the part
breaks and is replaced, it will no longer be liable”).
In instances involving a product’s incorporation by design of consumable
components, the manufacturer’s duty should conform to the useful life of the
product. To hold otherwise would (1) incentivize manufacturers to disregard their
common law duties merely by incorporating consumable components into their
product design, (2) condone their decision to forgo testing or warning with their
products or components, even where, as here, they had actual knowledge of the
hazards, (3) permit them to completely ignore advancements in scientific
knowledge after the original component is removed, which would eviscerate any
continuing duty to warn, and (4) force unassuming end users to shoulder the brunt
of consumable component-related injuries, particularly where, as here, the
47
manufacturer of the perishable component may not even be discernable (R.
1169[2116], 1353[2545]).
14
Had an adequate warning – either on the valve itself or in the instruction
pamphlet – been issued originally with a Crane valve, that warning would have
apprised all subsequent users, like the decedent, of the dangers of asbestos
exposure associated with the normal and intended use of replacing asbestos
components throughout the valve’s useful life. This Court should not endorse
Crane’s conscious failure to originally warn by absolving it of liability on the mere
happenstance that it did not supply the replacement parts in this particular setting,
especially where it supplied them in other settings.
Thus, this factor weighs strongly in favor of a duty to warn.
2. Asbestos components were “essential” components that
were “specified” for use with Crane’s valves in this
setting
The use of asbestos components with Crane’s valves was synergistic, such
that in order to retain their utility, the valves continued to be dangerous. As a
result, exposure to asbestos from Crane’s valves was unavoidable (R. 5490).
14
It is easy to imagine, in this modern day and age, that the duty to warn could be
rendered a complete nullity if Appellant’s approach is adopted. A 3-D printer, for example,
could fashion replacement parts for an infinite number of products, which, under Appellant’s
approach, would relieve all product manufacturers of a duty to warn and would place the full
onus of the latent injury on the innocent plaintiffs.
48
Pursuant to the very drawings Crane created and to Naval Machinery, which
Crane helped create, asbestos gaskets, packing, and lagging pads were specified as
the “correct” components for Crane’s high pressure, high temperature Navy boiler
room valves, and were deemed “essential” to the valves’ function (R. 3869, 3875-
76; 327[248], 329[256], 1163-1166[2090-2102], 1484[2792-93], 1505-19[2878-
79, 2891-92, 2918-21], 3425-83; SR. 1-50). Although Crane admitted to having
actual knowledge of this use (R. 5443, 5449-50), it disingenuously asserts that its
drawings do not directly address replacement parts (App. Brief at 51). It was
Crane’s own Naval expert, however, who testified that the exact purpose of these
drawings was to create standardization of replacement parts (R. 1509[2891-92]).
15
Clearly, Crane “purposefully manufactured” these specific valves for use with
these exact asbestos components. Cf. Liriano, 92 N.Y.2d 232, supra at 238 (duty
where product “purposefully manufactured to permit its use” as adapted post-sale).
Appellant baldly asserts that any number of other materials were available
for use in these valves (App. Brief at 15, 35). It conceded at trial, however, that
the use of asbestos components was “dictated by the service that…the equipment
was in” (R. 328[253]). And according to Crane’s own Naval expert,
standardization of these components was “absolutely essential” to the logistics of
15
Admiral Sargent also testified that these replacement parts were required to be stocked
on the ship because, logistically, when a ship was out to sea no consumable parts could be
acquired (R. 1505[2878]) (“Remember, a ship at sea, there is no telephone, there is no service
station, you have to have aboard everything you need to operate and maintain that ship”).
49
running a ship out at sea (R. 1505[2878]). Thus, it was a “known certainty” to
Crane that asbestos components would be used in its valves (COA 58). In Rastelli,
by contrast, the tire was manufactured to be used with any standard-sized rim on
the market (Id. at 294, n.1), thereby demonstrating only that the particular rim
“could have” or “might have” been used.
To this end, there is no dispute between the parties that a necessary
component implicates a duty (see App. Brief at 33).
16
Crane appears to ignore the
facts here, however, since the word “essential” is synonymous with necessary. In
any event, use by necessity cannot be the only type that rises above merely
“compatible for use.” Rastelli¸ supra. Specified components should certainly fall
within the ambit of a potential duty, as recognized by Appellant’s seminal case.
See Surre, 831 F.Supp.2d 797, supra at 803 (specification by prescription
constituted “more than a mere possibility that asbestos might be used”). Indeed,
any difference between a specified component and a necessary component is mere
semantics. See Berkowitz, 288 A.D.2d 148, supra (although “technically true that
its pumps could run without insulation,” potential duty where, inter alia,
component was specified).
16
Crane’s current position arguably is subject to the doctrine against inconsistent
positions, since at all times in this case until now it had argued that no duty can exist in any
circumstance where it did not place the asbestos into the stream of commerce. See Maas v.
Cornell University, 253 A.D.2d 1, 683 N.Y.S.2d 634 (3d Dept., 1999), aff’d 94 N.Y.2d 87, 92-
93.
50
Accordingly, this factor weighs heavily in favor of a duty.
3. Crane’s valves contributed to the release of asbestos dust
from its component parts
Asbestos gaskets and packing posed no danger of asbestos dust release
unless deteriorated (R. 929[1574], 986[1685-86], 1605[3114-15]). As conceded by
Crane, the release of asbestos dust resulted only from those uses that compromised
the component, thereby making the asbestos friable (R. 5444-45). To be sure, in
some applications the gaskets “just fell out,” meaning the asbestos was not
disturbed (R. 1627[3200]). Deterioration was a factor of pressure, temperature,
and length in service (R. 980[1662-63]).
Here, it was the particular use of these components in Crane’s high pressure,
high temperature valves that caused the components to deteriorate (R. 980[1662-
63], 984[1677-78], 1003[1756]), thereby releasing the asbestos and necessitating
replacement (R. 1501[2859-60], 5488-91). Crane knew precisely which valves this
included because Crane’s drawings identified the valve system (SR. 1-50). Thus,
Crane’s valves created the danger of asbestos dust release from the gaskets and
packing. Compare Rastelli, supra at 298 (“[n]othing in the record suggest[ed] that
Goodyear created the dangerous condition” or “contribute[d] to the alleged defect
in a product”), with Penn v Jaros, 25 A.D.3d 402, supra (pulling of the defendant’s
alarm, i.e., its normal use, created the danger of exposure to the hazardous gas
51
component). This presents yet another distinction to Rastelli, where the defective
rim was dangerous when used with any tire.
Similarly, since the asbestos was internal to the lagging pads, no danger of
exposure was presented unless the pads were disturbed (R. 5494). These lagging
pads were only disturbed because the valves required routine internal maintenance
(R. 5494; 1169-78[2116, 2126-27, 2152], 1336[2475], 3875, 5488-90). Indeed,
asbestos lagging pads were mandated for use on valves due to the ease with which
they could “be taken down fairly often.” (R. 3875, 5663). This is in contrast to
other types of insulation, like pipe covering, that were permanent installations, and
thus were not disturbed (R. 1484[2793], 1500[2856-57], 5663). Therefore, unlike
Rastelli, Crane’s valves, by their very design and operation, created the danger of
asbestos dust release from the lagging pads.
This factor weighs in favor of a duty to warn.
4. Crane marketed asbestos components for this exact use
and exercised control over the Navy’s use of the same
asbestos components with its high pressure, high
temperature valves
It is befuddling that Appellant advances a “control-based” test when the
record is clear that Appellant substantially participated in the underlying decision
to use asbestos components with its Navy boiler room valves, as recognized by the
Appellate Division (COA 43). Appellant baldly asserts that it had nothing to do
52
with this decision, as if to intimate that the Navy knew more about valve operation
than Crane did (see App. Brief at 12).
Appellant, however, was the world’s largest valve manufacturer (R. 3885),
and had been selling, specifying, recommending, and marketing asbestos gaskets,
packing, and insulation for use as components of its high pressure, high
temperature valves, and as aftermarket replacement parts, for almost a century
before selling a single valve to the Navy (R. 5432; 3589-3619, 3654-65, 3674-79,
3716-54, 3881-3957). In the private sector, Crane dictated the use of asbestos by
valve service type (R. at 3661-62, 3746, 3892, 3895-97, 3910-54), and placed
Cranite into “all” of its high pressure, high temperature valves (R. 3603). It
marketed asbestos as unexcelled for insulating valves (R. at 3606-07, 3616, 3664-
65, 3745, 3894-95, 3915), and advertised that its marine valves were “easier to
insulate” based on their design (R. at 1277 [2411], 3945, 5443, 5563). Thus, Crane
designed its private sector high pressure, high temperature valves to be used with
these exact asbestos components as a standard business practice.
To this end, Crane offered the Navy “valuable assistance” in standardizing
the use of specified and “essential” asbestos components with high pressure, high
temperature valves (R. 3867, 3869, 3876). Crane was one of a few valve
manufacturers that did this (R. 3867), and the others were merely specialty
regulator or gage manufacturers (R. 1496[2842], 1179[2154]). It is no surprise,
53
then, that the Navy looked to Crane’s world-leading valve expertise and century-
old practice of using asbestos components in these exact services to implement an
identical standardization system. This “standardization” dictated what technical
requirements were contained in the military specifications issued by the Navy to its
vendors (R. 1506[2879]). Crane’s control was, in fact, so high that it affirmatively
“substituted” Cranite in place of the standard gaskets in its valves (R. 1163-64).
By comparison, in Rastelli, the tire manufacturer never sold or marketed the
defective replacement rim that was arbitrarily used with its tire post-sale. Id. at
294. It was “indifferent” to the use of that component with its tire (COA 42).
Therefore, this factor weighs in favor of a duty to warn.
17
5. Crane derived a benefit from the use of asbestos gaskets,
packing, and lagging pads with its high pressure, high
temperature valves
Appellant derived at least an indirect benefit from the use of asbestos
components with its Naval valves, since they could not function as intended during
their useful lives without “essential” insulation and the replacement of the
“correct” sealing components (R. 326-28[248, 253], 1484[2792-93], 3869, 3875,
5496). Indeed, the wrong component would not seal the valve properly, and a
leaking valve was not a functional one (R. 5489-90). An uninsulated valve would
17
Notably, even assuming arguendo that Appellant’s newfound “control-based” approach
is the appropriate one, that test is satisfied here.
54
permit the dissipation of heat, and a valve that could not maintain the temperature
for steam was not a functional one (R. 1484[2792-93], 3869). Appellant even
effectively represented that these components were its own by “substituting”
Cranite for the standard asbestos gaskets (R. 1163-64[2091-96]). Cf. Baughman v.
General Motors Corp., 780 F.2d 1131 (4th Cir., 1986) (no duty where, inter alia,
defendant “has not represented to the public that the component part is its own”).
Therefore, Crane derived at least an indirect benefit from this use. By
comparison, in Rastelli, the replacement rim was just one of 24 standard-sized rims
that could have permitted the tire to function as intended, and the manufacturer
derived no benefit, direct or indirect, from the post-sale use of that particular rim.
Thus, this factor weighs in favor of a duty.
6. Appellant’s egregious conduct in consciously choosing to
never warn weighs in favor of imposing a duty to warn
Appellant’s conduct in failing to warn was abhorrent. See Palka, 83 N.Y.2d
579, supra at 585 (duty analysis involves wrongfulness of defendant’s actions).
Crane sold dozens of asbestos products for 135 years without ever testing,
inspecting, or warning (R. 3589-3957, 5432-33, 5441-42). Crane actually stayed
abreast of the scientific knowledge regarding the dangers of asbestos dating back
to the 1930s (R. 756[1180], 1268-74[2374-97], 1412-15[2651-64], 5432-40), and
admitted to a broad knowledge that asbestos insulation was hazardous during the
55
pertinent time period (R. 323[232]), but it nonetheless chose to disregard its duties.
Since Crane knew that asbestos disease had a latency period of decades, it
understood that its profits would be unfettered by immediate liability. Indeed, it is
difficult to otherwise explain Crane’s choice to never test for dangers despite its
massive resources and century-old access to the exact asbestos components at issue
(R. 5432; 1515-16[2918-21], 3589-3957).
What is more, Crane never warned about the dangers of asbestos associated
with its valves in any setting, including for the asbestos components it actually
placed into the stream of commerce (R. 5440-43). It admitted to having actual
knowledge of the lethal hazards of asbestos associated with its valves in the early
1970s, but incredibly it still did not warn (R. 5435, 5440-43). See MacPherson v.
Buick Motor Co., 217 N.Y. 382, 390, 111 N.E. 1050 (1916) (“the presence of a
known danger, attendant upon a known use, makes vigilance a duty”). And while
reaping massive profits from its use of asbestos, it waited another 16 years before
even placing a notice on its valves, which was not even a warning (R. 5440-41).
Instead of acting decently by warning, the world’s preeminent valve
manufacturer enhanced the lethal danger of asbestos exposure to its valve users by
consciously choosing to place profits over the possibility of a decrease in
marketability of its valves due to an attendant warning – a decision that resulted in
thousands of deaths, including to the decedent here. Simply put, Crane
56
consciously disregarded its standard of care, and the flagrant recklessness of
Appellant’s conduct weighs strongly in favor of imposing a duty in this case.
7. Mr. Dummitt, as a normal valve user, clearly had a
reasonable expectation of care
It cannot be seriously disputed that the decedent had a reasonable
expectation of care from Appellant. See Palka, supra (duty analysis involves the
reasonable expectation of care owed). It is well-established that a manufacturer’s
duty to warn against latent dangers extends to all normal product users. See
McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 68, 181 N.E.2d 430
(1962); see also Codling v. Paglia, 32 N.Y.2d 330, supra at 342.
Here, it is uncontroverted that the decedent was exposed to asbestos as a
normal user of Crane’s valves (R. 1166-82[2104-05, 2117, 2132, 2144-45, 2154,
2167-69], 5488). The decedent’s “normal user” status implicates a class of
persons marked by a definable limit, which eliminates any fear of an indeterminate
class of plaintiffs. See Denny, 87 N.Y.2d 248, supra at 262 n.6 (remarking, in a
design defect context, on the unfounded fear of limitless liability were a duty is
simply “attendant to the normal use of the product”); cf. Hamilton v Beretta U.S.A.
Corp., 96 N.Y.2d 222, 233, 727 N.Y.S.2d 7 (2001) (“specter of limitless liability is
not present because the class of potential plaintiffs to whom the duty is owed is
circumscribed by the relationship”); Palka, supra at 589 (duty imposed for
57
“reasonably interconnected and anticipated relationships”). Therefore, the
decedent unquestionably had a reasonable expectation that Appellant would warn
him against the unavoidable, lethal, and latent dangers of asbestos exposure
attendant to its valves’ normal use.
Accordingly, the pertinent considerations unequivocally weigh in favor of a
duty to warn. It is no shock that Appellant advocates for a bright-line, single-
factor test, since the only consideration weighing in its favor is that it did not
supply the particular components that, by chance, were the direct source of the
decedent’s asbestos exposure. Crane’s duty to warn is further augmented by its
status as the joint tortfeasor in a superior position to warn.
ii. Crane was the manufacturer in the best position to warn
Under these facts, Appellant was actually in a unique position to warn. See
Micallef v. Miehle Co., 39 N.Y.2d 376, supra at 387 (“legal responsibility, if any,
for injury caused by machinery which has possible dangers incident to its use
should be shouldered by the one in the best position to have eliminated those
dangers”) (emphasis added).
Since gaskets, packing, and lagging pads were consumable, fungible
products (R. 1163[2090], 1500[2856-57], 5450), whereas valves were long-lived,
stationary fixtures (R. 1518[2927]), Crane was in the best position to warn. Unlike
the perishable components, Crane’s valves came with nameplates and instruction
58
pamphlets where warnings could have been placed and would have remained
throughout the valves’ lives (R. 1518[2930], 3939, 5513-14). Appellant even had
the ability to comply with its post-sale duty to warn by updating its instruction
pamphlets (R. 5475). To have warned through these permanent conduits would
have been undemanding and inexpensive. See Liriano, 92 N.Y.2d 232, supra at
239-40 (warning post-sale “is neither infeasible nor onerous…”); Cooley, 102
A.D.2d 642, supra at 644 (“[s]ince the cost of providing warnings is often minimal,
the balance usually weighs in favor of an obligation to warn”). Moreover,
recognizing that the equipment manufacturers were in the best position to warn, the
Navy underscored that manufacturers should comply with their duty to warn for
equipment operations that could injure or kill (R. 1487-88[2804-07], 5447-48).
18
In this regard, it is noteworthy that the manufacturer of the lagging pads was
unknown (R. 1169[2116], 1353[2545]).
19
As such, Appellant is the only joint
tortfeasor “reasonably available” to Plaintiff. See Mead v Warner Pruyn Division,
18
Despite being the world’s preeminent valve expert, and having a nondelegable duty to
warn, Appellant blames the Navy for being in “the best position to appreciate the dangers” (App.
Brief at 42). Appellant’s attempt to escape liability unjustly shifts the blame to a governmental
entity that is not only immune from liability (see 28 U.S.C. § 1346(b)(1); Feres v U.S., 340 U.S.
135 (1950); Wake v United States, 89 F.3d 53, 57 (2d Cir., 1996)), but has been held to have no
impact on asbestos manufacturers’ nondelegable duty to warn. See, e.g., In re Brooklyn Navy
Yard Asbestos Litig., 971 F.2d 831, 838-39 (2d Cir., 1992) (“there is nothing unjust in holding
Defendants liable for their own negligence, notwithstanding the Navy’s additional lapse.”)
19
Appellant wrongly attempts to invoke insulation sellers like Johns-Manville and Union
Asbestos & Rubber (App. Brief at 14). These companies had nothing whatsoever to do with any
asbestos component used with Appellant’s valves in this case.
59
57 A.D.2d 340, supra at 341. Certainly, from a policy standpoint, Appellant as a
culpable manufacturer rather than the unsuspecting decedent is in a superior
position to bear the loss associated with a terminal injury created by the synergistic
use of “essential” lagging pads with Appellant’s valves (R. 3869). See Liriano,
supra at 240 (“post-sale duty to warn arises from a manufacturer's unique (and
superior) position to follow the use and adaptation of its product by consumers”).
This is simply a cost of business associated with designing its products to be used
with aftermarket components. See Sprung, 99 N.Y.2d 468, supra at 473.
20
Appellant also had every opportunity to seek indemnification or contribution
from the known component part manufacturers (see C.P.L.R. § 1401), and to the
extent that any such manufacturers are bankrupt or defunct, Appellant still had the
ability to reduce its own share of liability by establishing the liability of those
nonparty tortfeasors. See C.P.L.R. §§ 1601, 1603; In re New York City Asbestos
Litig. [Tancredi], 6 A.D.3d 352, 775 N.Y.S.2d 520 (1st Dept., 2004) (bankrupt
entities may be placed on the verdict sheet), lv. dismissed 5 N.Y.3d 849.
Thus, public policy militates strongly in favor of a duty.
20
Amici Business Council, et al. attempt to raise a fear of “over-warning.” (Amici Brief
at 39-40). But there can be no such fear where, as here, no entity warned at all, the asbestos
component manufacturers had no permanent channels to warn, and the injury at stake is death.
60
iii. The component parts doctrine actually heightens Crane’s
duty to warn under the facts of this case
The component parts doctrine may shield manufacturers of generic or
nondescript components from liability for dangers associated with the integrated
system as a whole. See Restatement (Third) of Torts: Products Liability § 5
(1998). It does not apply to particularized products, or if the component itself was
defective and that defect caused the harm, or if the manufacturer substantially
participated in the integration of the component into the system, that integration
rendered the system defective, and that defect caused the harm. Id.
Here, unlike some basic valves, Crane’s valves were not generic
components; they were sophisticated, large pieces of equipment that were
purposefully manufactured for particular uses (R. 1163-1166[2090-2102],
1509[2891-92], 1519[2931], SR. 1-50). Appellant’s own caselaw provides that
this doctrine is inapplicable to a “‘product with a specific purpose and use.’” In re
TMJ Implants Products Liability Litig., 872 F.Supp.1019, 1026 (D.Minn., 1995).
Further, these sophisticated valves, which were supplied with asbestos
components that required routine replacement, were defective when sold, and it
was their lack of warning that caused the decedent to be exposed. See Restatement
(Third) of Torts: Products Liability § 2 (1998). The decedent’s injury was from the
valves, not the final assembly of the piping system.
61
Also, Appellant offered the Navy “valuable assistance” in determining how
its valves should be integrated into Naval boiler systems, including the
standardization of specified asbestos components (R. at 3866-75). Thus, even
assuming that Crane’s valves, themselves, were not defective, and further
assuming that it was the boiler system as a whole that caused the injury, the
component parts doctrine would still be inapplicable because Crane substantially
participated in the integration of its valves into the boiler system. See Restatement
(Third) of Torts: Products Liability § 5, cmt. e (where seller plays a “substantial
role in deciding which component best serves the requirements of the integrated
product, …it is fair and reasonable to hold the component seller responsible for
harm caused by the defective, integrated product”). Notably, the Restatement’s
Comment is similar to the framework of the Appellate Division here (COA 41).
To this end, this doctrine actually heightens Appellant’s duty to warn under
the facts of this case. It was the asbestos components at issue, not the valves, that
were generic components sold in bulk to the Navy (R. 1169[2116], 1353[2545],
1505[2878]), and that were not dangerous unless used in particular applications (R.
980[1662-63], 1627[3200]). Since the component parts doctrine arguably relieved
these component manufacturers of a duty to warn, Appellant was the only
manufacturer that was obligated to warn.
Accordingly, a duty to warn was properly imposed on Crane.
62
C. Even Assuming That Appellant’s Request For A New Trial On
The Issue Of Duty Is Reviewable, A New Trial Is Unwarranted
Where A Duty Was Properly Imposed By Supreme Court And
The Jury Did Nothing More Than Serve Its Function By
Adjudicating Foreseeability
Appellant’s request for a new trial is unpreserved. In any event, since it is
the court’s role to determine duty in the first instance, Appellant’s request for a
new trial so the jury can determine duty is a non-sequitor.
i. Appellant’s request for a new trial on the issue of duty is
unpreserved and thus nonreviewable
Appellant asserts that if the Appellate Division’s statement of the law is
correct, a new trial is warranted so the jury can determine whether the applicable
duty test is satisfied (see App. Brief at 42-57). This argument is unpreserved.
It is well-settled that issues that are not raised at the trial level fall outside of
this Court’s scope of review. See Bingham v. New York City Transit Authority,
99 N.Y.2d 355, 359, 786 N.E.2d 28 (2003); Merrill v. Albany Medical Center
Hosp., 71 N.Y.2d 990, 524 N.E.2d 873 (1988).
Here, at no time during the trial did Appellant assert, in the alternative, that
the jury should be required to answer factual interrogatories regarding Appellant’s
duty to warn. Instead, Appellant held steadfast to its bright-line argument that no
duty existed as a matter of law (R. 1679[3239-40], 2031[4066]). It was not, in
fact, until Appellant submitted its Appellate Division Reply Brief that the instant
63
argument seeking a new trial was first raised.
21
Thus, it is nonreviewable. See
Grzesiak v. General Elec. Co., 68 N.Y.2d 937, 502 N.E.2d 994 (1986). Yet even if
considered, the argument is wholly meritless.
ii. Since it is the court’s role to determine whether a duty
exists in the first instance, a new trial is not warranted to
permit the jury to determine duty
Appellant conflates the role of the court with the role of the jury. Legal duty
is, in the first instance, a question for the court, whereas issues of “foreseeability
and causation” are “entrusted to fact finder adjudication.” Palka, 83 N.Y.2d 579,
supra at 585; see also Di Ponzio v. Riordan, 89 N.Y.2d 578, supra at 583. But
considering the shimmering nature of duty, and the reality that the factual and legal
questions of duty and foreseeability are often interwoven, Appellant’s confusion is
not surprising. See Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, supra at 644
(“factual determinations are often interwoven with the question of whether the
defendant manufacturer has a duty to warn”).
Here, a duty was determined to exist “prior to submitting anything to fact-
finding or jury consideration” (Palka, supra) (R. 1769[3490]), and the jury was
then charged with determining foreseeability in the context of a breach of that duty
(R. 2030-31). This charge adequately conveyed the proper standard, and was
21
Indeed, the “Questions Presented” in Crane’s Appellate Division Opening Brief posed
whether Appellant was “entitled to judgment as a matter of law, or at a minimum a new trial…”
on the causation issue, but as to duty, only whether it was “entitled to judgment as a matter of
law” (First Dept. App. Brief at 3-4).
64
tailored specifically to the facts, contentions, and legal issue of this case. See
Jorgensen v. N.Y. Foundation for Sr. Citizen Guardian Services, Inc., 61 A.D.3d
612, 876 N.Y.S.2d 870 (1st Dept., 2009) (citing Green v. Downs, 27 N.Y.2d 205,
208-09, 265 N.E.2d 68 (1970)).
Notably, the Appellate Division dissenters failed to recognize that the charge
at issue was taken verbatim from Rastelli. (R. 2031[4068]) (“[a] manufacturer has
a duty to warn against latent dangers resulting from foreseeable uses of its product
of which the manufacturer knew or should have known”). The instruction that
followed addressed, quite simply, the issues of foreseeability of the use and harm
(R. 2031[4068-69), which are precisely what the jury is supposed to adjudicate in a
negligence-based failure-to-warn case. See Enright v. Eli Lilly & Co., 77 N.Y.2d
377, supra at 385-87 (“[c]oncepts of reasonable care and foreseeability are not
divorced from [a failure-to-warn] theory”); Eiseman v State, 70 N.Y.2d 175, supra
at187 (foreseeability is a “factual issue to be resolved on a case-by-case basis by
the fact finder”); Alfieri v. Cabot Corp., 17 A.D.2d 455, supra (“[t]he jury’s
[failure to warn] verdict was a finding of foreseeability”), aff’d 13 N.Y.2d 1027;
McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, supra at 68-69; P.J.I.
2:120, vol. 1A, p. 742 (2014 ed.) (manufacturer’s liability based on its product’s
“use in a way that the manufacturer should reasonably foresee”). It is
contradictory for Appellant to attempt to rely categorically on Rastelli but reject a
65
charge taken letter-perfect from Rastelli and otherwise predicated on the failure-to-
warn underpinnings of foreseeability that Rastelli embraces.
Indeed, as acknowledged by the Appellate Division dissenters, the jury was
charged with determining “whether Crane had breached a duty to warn,” not
whether a duty existed in the first instance (COA 56) (emphasis added); Darby v.
Compagnie National Air France, 96 N.Y.2d 343, 347, 753 N.E.2d 160 (2001)
(“[a]lthough juries determine whether and to what extent a particular duty was
breached, it is for the courts first to determine whether any duty exists”). This is
made plain by the verdict sheet, which only asked the jury to determine (1)
exposure, (2) whether Crane failed to exercise reasonable care by not warning, i.e.,
breach, and (3) proximate cause (R. 2167). Thus, contrary to Appellant’s
assertion, the jury instruction adequately conveyed the appropriate legal standard.
22
Consequently, a new trial is not warranted to permit the jury to make factual
findings as to legal duty because it is not the jury’s role to do so.
Moreover, Appellant spuriously asserts that the Appellate Division adopted
a new test and then made new factual findings to support that test. As noted supra,
the Appellate Division did not create new considerations, it merely framed the
22
Further contrary to Appellant’s assertion, the Appellate Division majority did not agree
that this charge was erroneous (see App. Brief at 44). Rather, it concluded that the charge had no
potential to communicate the wrong standard to the jury (COA 44), which is a marker for an
adequate charge. Cf. Roshwalb v. Regency Maritime Corp., 182 A.D.2d 401, 582 N.Y.S.2d 140
(1st Dept., 1992) ([a] jury charge is sufficient when it adequately conveys the applicable law), lv
denied 80 N.Y.2d 756.
66
existing ones (COA 41). As a result, Appellant not only could have tailored its
evidence to the Rastelli considerations, but it flatly argued at trial that it had done
so (R. 1679[3240-41]). Appellant’s assertion that it was somehow prevented from
presenting evidence addressing these established considerations is sophistry (see
App. Brief at 55-57). By eliciting extensive testimony from two different Naval
experts (R. 1503-22, 1581-1602), by cross-examining its codefendant’s Naval
expert (R. 1488-96), and by presenting a thousand pages of Navy-related exhibits
(R. 4015-4991), Appellant made every attempt to prove that the factors were not
met. In fact, the only evidence Appellant asserts it would have introduced had it
purportedly been aware of the considerations was precluded on relevancy grounds
because it post-dated the decedent’s exposure period (R. 1519-20) (see App. Brief
at 56-57). Appellant was hardly deprived of a right to present evidence.
Nor did the Appellate Division make new factual findings or conclude that
the jury made erroneous findings, as all the facts it identified were clearly
discussed by Supreme Court (R. 53). See Cohen v. Hallmark Cards, Inc., 45
N.Y.2d 493, 498, 410 N.Y.S.2d 282 (1978) (new trial required only where “the
Appellate Division concludes that the jury has made erroneous factual findings”).
Even assuming, however, that Appellant had preserved its argument for a
new trial, and further assuming that the jury charge did not adequately convey the
proper legal standard as to breach of duty, the Appellate Division dissent is correct
67
that, on these facts, there is simply no view under which Appellant could have
prevailed (COA 58). See Marine Midland Bank v Russo Produce Co., 50 N.Y.2d
31, 43, 427 N.Y.S.2d 961 (1980); O'Connor v. Eggleston, 31 A.D.2d 735, 297
N.Y.S.2d 29 (4th Dept., 1968) (despite an erroneous charge, “[t]here is no
justification in requiring these plaintiffs to be subjected to a new trial in order to
get the same result as in the trial we are here reviewing”), lv. denied 23 N.Y.2d
646 (1969). Therefore, even if this Court considers Appellant’s unpreserved
argument addressed to breach rather than duty, a new trial is not warranted.
Accordingly, a duty to warn was properly imposed on Appellant, and the
order of the Appellate Division should be affirmed.
II. A REBUTTABLE HEEDING PRESUMPTION EXISTS UNDER NEW
YORK LAW AND WAS PROPERLY CHARGED TO AID MRS.
DUMMITT IN OVERCOMING HER BURDEN OF PROOF
A. Presumptions, Which Are Common In Our Jurisprudence, Act In
Specific Circumstances To Aid The Plaintiff In Overcoming Her
Burden Of Persuasion
Appellant’s assertion that a rebuttable heeding presumption improperly
relieves a plaintiff of her burden of proof runs completely contrary to this Court’s
precedents regard the nature of presumptions. See Blake v. Neighborhood
Housing Services of New York City, Inc., 1 N.Y.3d 280, 289 n.8, 803 N.E.2d 757
(2003) (rebuttable presumption is merely an “aid” to the plaintiff); Prosser and
Keeton, Torts § 38, at 240 (5th ed.) (“[t]he party having the burden of proof may
68
be aided by the procedural devices known as presumptions”). The burden of proof
remains with the plaintiff and a rebuttable presumption does nothing more than
serve as a “guide for the fact finder.” Green v. William Penn Life Ins. Co. of New
York, 12 N.Y.3d 342, 345, 907 N.E.2d 700 (2009); cf. Schechter v. Klanfer, 28
N.Y.2d 228, 233, 269 N.E.2d 812 (1971) (res ispa loquitur “does not, however,
shift the burden of proof…”).
To this end, in specific instances where it may be difficult for a plaintiff to
establish an element of her burden, presumptions that aid the plaintiff are
prevalent. In automobile cases, for example, the plaintiff is aided by a rebuttable
presumption that the vehicle that caused the collision was operated with the
defendant owner’s consent (see Murdza v Zimmerman, 99 N.Y.2d 375, 379-80,
756 N.Y.S.2d 505 (2003)), and a rebuttable presumption of negligence exists both
where the defendant driver fell asleep at the wheel (see Spivak v Heyward, 248
A.D.2d 58, 679 N.Y.S.2d 156 (2d Dept., 1998)), and where the defendant’s vehicle
rear-ended the plaintiff’s vehicle. See Bender v. Rodriguez, 302 A.D.2d 882, 754
N.Y.S.2d 475 (4th Dept., 2003). In Scaffolding Law actions, the plaintiff is
entitled to a rebuttable presumption that a scaffold or ladder that collapses for no
apparent reason was not good enough to afford proper protection. See Blake, supra
at 285-86. In actions to recover life insurance proceeds, a rebuttable presumption
69
against suicide exists. See Schelberger v. Eastern Sav. Bank, 60 N.Y.2d 506, 509-
12, 458 N.E.2d 1225 (1983).
In analogous circumstances, equitable doctrines exist that actually lessen the
burden of proof. See, e.g., Noseworthy v. City of New York, 298 N.Y. 76, 80-81,
80 N.E.2d 744 (1948) (in cases where there are no eyewitnesses to an occurrence
other than the plaintiff’s decedent, the “plaintiff is not held to as high a degree of
proof of the cause of action”); see also Schechter v. Klanfer, 28 N.Y.2d 228, 230-
33, 269 N.E.2d 812 (1971) (plaintiff with amnesia due to his injury is entitled to a
lesser degree of proof”). In yet other circumstances, a burden-aiding inference
exists, rather than a presumption, although such lines are often blurred. See, e.g.,
Morejon v. Rais Const. Co., 7 N.Y.3d 203, 208-11, 851 N.E.2d 1143 (2006) (res
ipsa loquitur creates an inference of negligence, rather than presumption of
negligence); Martin v. Herzog, 228 N.Y. 164, 170, 126 N.E. 814, 816 (1920)
(rebuttable inference of negligence when defendant driving without headlights).
Thus, this Court’s precedents are replete with examples of long-established
presumptions, inferences, and burden-reducers, which, instead of relieving the
plaintiff’s burden of proof, merely aid the plaintiff while ultimately “leaving the
issue [] to the jury.” Green, supra at 346.
70
B. New York Precedents Support A Heeding Presumption In Certain
Failure-To-Warn Actions To Aid The Plaintiff In Overcoming
Her Burden Of Proof As To Causation
The heeding presumption derives from the Restatement (Second) of Torts,
Section 402A, Comment j (1965), which provides that “[w]here warning is given,
the seller may reasonably assume that it will be read and heeded.” Where no
warning is given, the end user should be entitled to the corollary presumption, that
is, had a warning been given, it is presumed it would have been heeded.
Although this Court has not directly addressed whether a heeding
presumption exists under New York law, it has noted in dicta that such a
presumption exists. See Applebee v. State, 308 N.Y. 502, 507-08 (1955) (“[h]ad
the stop sign been in place, we presume that Miss Steinmiller would have observed
its injunction”). It has identified similar assumptions as that set forth in the
Restatement (Second). See, e.g., O'Brien v. Erie R. Co., 210 N.Y. 96, 100-01, 103
N.E. 895 (1913) (train conductor has the right to assume that a living object on the
train tracks will leave the track in time to escape injury). It has also recognized a
presumption predicated on the basic notion that a person will follow instructions
when given. See People v. Morris, 21 N.Y.3d 588, 598, 999 N.E.2d 160 (2013) (it
is presumed that a jury will follow a court’s limiting instructions).
Further instructive is that this Court has relied on Section 402A. See, e.g.,
Sprung v. MTR Ravensburg Inc., 99 N.Y.2d 468, supra at 473; Robinson v Reed-
71
Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717
(1980). Thus, although this Court has not directly addressed the existence of a
heeding presumption, its precedents support such a presumption as a corollary to
that set forth in Section 402A. Cf. Coffman v. Keene Corp., 133 N.J. 581, 595-
601, 628 A.2d 710 (N.J., 1993) (a heeding presumption is “a logical corollary of
Comment j”); accord Butz v. Werner, 438 N.W.2d 509 (N.D., 1989).
And, importantly, this Court has never stated that to meet her proximate
cause burden in a failure-to-warn action, a plaintiff must, in all circumstances,
provide direct evidence that a warning, had one been given, would have been
heeded. That is perhaps why Appellant relies on intermediate appellate cases to
support such a faulty assertion. Strikingly, however, Appellant’s cases actually
support a heeding presumption since they uniformly involved circumstances where
the product manufacturer actually provided an adequate warning and the plaintiff
completely ignored it. See, e.g., Mullhall v Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d
282 (1st Dept., 2007); Guadalupe v. Drackett Prods. Co., 253 A.D.2d 378, 676
N.Y.S.2d 177 (1st Dept., 1998); Sosna v American Home Products, 298 A.D.2d
158, 748 N.Y.S.2d 548 (1st Dept., 2002); Upfold v Generac Corp., 224 A.D.2d
1021, 638 N.Y.S.2d 264 (4th Dept., 1996); Rochester Refrigerating Corp v Easy
Heat, Inc., 222 A.D.2d 1013, 635 N.Y.S.2d 89 (4th Dept., 1995), lv dismissed 87
N.Y.2d 1056. These cases implicitly adopt the proposition in Section 402A that
72
when a warning is actually given, the manufacturer can presume it will be heeded.
By relying on such cases, Appellant is inherently accepting the corollary
proposition that where no adequate warning is given, it is presumed that the user
would have heeded one.
Indeed, the considerations that warrant a heeding presumption in asbestos
failure-to-warn cases – including the long latency of disease and the inexorable
death of the plaintiff – are conspicuously absent from the foregoing cases. This
also highlights the error of the Appellate Division dissent in concluding that a
heeding presumption was contrary to the foregoing caselaw (COA 60).
The First Department has, in fact, endorsed the heeding presumption. See
Union Carbide Corp. v. Affiliated FM Ins. Co., 101 A.D.3d 434, 434, 955
N.Y.S.2d 572 (1st Dept., 2012) (citing Santoro v. Donnelly, 340 F.Supp. 2d 464,
486 (S.D.N.Y., 2004)). Here, the Appellate Division dissent sought to disregard its
prior endorsement on the basis that it was dicta (COA 61, n.6). The Union Carbide
Corp. insurance dispute, however, was predicated on underlying asbestos failure-
to-warn actions filed against the insured product manufacturer. This decision
certainly alludes to, if not recognizes, a heeding presumption. See also P.J.I.
Companion Handbook, §8.2, p. 387; § 8.2, p. 392 (2014 ed.) (heeding
presumptions charged in sample asbestos cases tried in 2002 and 2003).
73
Multiple jurists have otherwise concluded that New York recognizes a
heeding presumption. See, e.g., Reis v. Volvo Cars of North America, Inc., 73
A.D.3d 420, 426-27, 901 N.Y.S.2d 10 (1st Dept., 2010) (Manzanet-Daniels, J.,
dissenting); Power v. Crown Controls Corp., 149 Misc.2d 967, 969, 568 N.Y.S.2d
674 (Sup. Ct., N.Y. Co., 1990); see also Adesina v. Aladan Corp., 438 F.Supp.2d
329, 338 (S.D.N.Y., 2006); Henry v Rehab Plus Inc., 404 F.Supp.2d 435, 442
(E.D.N.Y., 2005); Santoro v. Donnelly, supra; G.E. Capital Corp v. A.O. Smith
Corp., 2003 WL 21498901 at *5 (S.D.N.Y., 2003); Anderson v. Hedstrom Corp,
76 F.Supp.2d 422, 441 (S.D.N.Y., 1999). Other intermediate appellate courts have
indirectly framed an averment in such a light. See, e.g., Wood v. State, 112
A.D.2d 612, 615, 492 N.Y.S.2d 481 (3d Dept., 1985) (“[w]e consider it most
unlikely that [the plaintiff’s decedent], under ordinary circumstances, would fail to
observe and fail to heed a light directly over his lane of traffic”); Van Tuyl v State,
6 A.D.2d 209, 213, 175 N.Y.S.2d 951 (4th Dept., 1958), aff’d 6 N.Y.2d 912
(1959). Thus, a heeding presumption finds direct support in our jurisprudence.
Also significant is that a heeding presumption is implicitly incorporated into
the basic test for determining whether a warning is adequate. See Lancaster Silo &
Block Co v. Northern Propane Gas Co., 75 A.D.2d 55, 64, 427 N.Y.S.2d 1009 (4th
Dept., 1980) (adequacy addresses not just the language of the warning, but also its
location, conspicuousness, and method of communication). Tellingly, since even a
74
product user that ignores warnings of one type can still establish that he would
have heeded a more conspicuous warning, a heeding presumption implicitly exists
because it is fundamentally presumed that an “adequate” warning, if given, would
have been heeded. See, e.g., German v. Morales, 24 A.D.3d 246, 806 N.Y.S.2d
493 (1st Dept., 2005) (issue of fact as to whether a more conspicuous warning
would have been heeded even though plaintiff did not read the warnings that were
given); Johnson v. Johnson Chemical Co., Inc., 183 A.D.2d 64, 588 N.Y.S.2d 607
(2d Dept., 1992) (“[a] consumer such as Ms. Kono who, by her own admission,
tends to ignore one sort of label, might pay heed to a different, more prominent or
more dramatic label”); Humphrey v. Diamant Boart, Inc., 556 F.Supp.2d 167
(E.D.N.Y., 2008); Derienzo v. Trek Bicycle Corp., 376 F.Supp.2d 537, 568
(S.D.N.Y., 2005). Thus, a heeding presumption accords with a manufacturer’s
duty to provide adequate warnings.
Appellant relies on the Second Circuit decision in Raney v. Owens-Illinois,
Inc. (897 F.2d 94, 95 (2d Cir., 1990)) for the proposition that New York does not
recognize a heeding presumption. But the Raney Court simply identified this
device as a rebuttable inference. See id. The Second Circuit later discussed a
“strong” heeding inference as shifting the burden of production – not proof – to the
defendant manufacturer to rebut but-for causation. See Liriano v. Hobart
Corp.[Liriano II], 170 F.3d 264, 271-72 (1999) (citing Martin v. Herzog, 228 N.Y.
75
164, supra for the proposition that “shifting of the onus procedendi has long been
established in New York”). The Liriano II decision has been discussed in terms of
“confirm[ing] the operation of [a heeding] presumption.” Anderson v. Hedstrom
Corp, 76 F.Supp .2d 422, supra at 442.
To this end, this Court has avowed that in light of the “dizzying array of
formulations” amongst the various types of presumptions and inferences, “it would
be far less complicated” to view the issue “without undue emphasis on labels and
pigeonholes.” Morejon v. Rais Const. Co., 7 N.Y.3d 203, supra at 211. Indeed,
even the Second Circuit recognized the “false premise,” similarly advanced by
Appellant here, of requiring a plaintiff to present direct evidence that a warning
would have been heeded in every single instance where no warnings had been
given. Liriano II, supra at 271-72. Thus, essentially all New York precedents,
including those relied upon by Appellant, support the existence of a heeding
presumption under New York law. Cf. Coffman v. Keene Corp., 133 N.J. 581,
supra at 595-601 (adopting a rebuttable heeding presumption and citing the
numerous jurisdictions that have similarly done so).
C. A Heeding Presumption In Failure-To-Warn Actions Finds
Support In The Exact Same Public Policy Considerations That
Support Other Established Presumptions In Our Jurisprudence
The overarching policy consideration for permitting the presumptions,
inferences, and burden-reducers already recognized by this Court is to prevent
76
defendants from escaping liability where a plaintiff’s difficulty in meeting her
burden resulted from defendant’s actions. See Murdza v. Zimmerman, 99 N.Y.2d
375, supra at 379-80 (the purposes of a rebuttable presumption of consent is to
“remove the hardship which the common-law rule visited upon innocent persons
by preventing ‘an owner from escaping liability by saying that his car was being
used without authority or not in his business’”); Schechter v. Klanfer, 28 N.Y.2d
228, supra at 232 (the rationale for the Noseworthy doctrine is “not merely
plaintiff's inability to present proof, but the unfairness of allowing the defendant,
who has knowledge of the facts, to benefit by standing mute when plaintiff's
inability results from defendant’s acts”). An additional strong policy consideration
supporting certain presumptions involves the natural laws in favor of self-
preservation. See Schelberger v. Eastern Sav. Bank, 60 N.Y.2d 506, supra at 509-
10 (“[t]he presumption [against suicide] springs from strong policy considerations
as well as embodying natural probability,” including that “self-destruction is
contrary to the general conduct of mankind”); Eagle-Picher Industries, Inc. v.
Balbos, 326 Md. 179, 228, 604 A.2d 445 (Md., 1992) (finding a heeding
presumption in asbestos failure-to-warn actions predicated on “the natural instinct
of human beings to guard against danger”).
Significantly, these same policy considerations support a rebuttable heeding
presumption in asbestos actions. Asbestos disease has a long latency period of
77
typically 20 to 60 years between exposure and manifestation of disease (R.
403[408-09]). This factor may present a plaintiff with difficulty in testifying that
had a warning been given decades ago, it would have been heeded. cf. In re
Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 837 (2d Cir., 1992)
(“[b]ecause the events happened years ago, and many of those exposed to the
asbestos are deceased, to require precision of proof would impose an
insurmountable burden”). To be sure, the Legislature has rectified the unfairness
of permitting the latency of toxic tort injuries to result in an automatic dismissal.
See C.P.L.R. § 214-c; Matter of New York County DES Litigation [Wetherill], 89
N.Y.2d 506, 513, 655 N.Y.S.2d 862 (1997) (“[t]he goal of the Legislature in
adopting CPLR 214-c was to ‘provide relief to injured New Yorkers whose claims
would otherwise be dismissed for untimeliness simply because they were unaware
of the latent injuries until after the limitations period had expired’”). Thus, the
long latency of asbestos disease supports a heeding presumption.
Further, asbestos disease typically results in the plaintiff’s death (R.
751[1162], 760[1196]). Mesothelioma, for example, is not just terminal, but is
terminal in a rapid and debilitating fashion (R. 410[436-37], 418[467], 541[736]).
The average person diagnosed with mesothelioma lives just 13 months from the
date of diagnosis (R. 411[442]), and many plaintiffs do not even survive long
enough to provide deposition testimony. In such instances, a plaintiff may be able
78
to establish through coworker testimony what products the decedent was exposed
to decades ago, but would be unable to provide any evidence that a warning, if one
had been given, would have been heeded. Other jurisdictions have found this
equitable consideration germane in adopting a heeding presumption. See, e.g.,
Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179, 227, 604 A.2d 445 (Md.,
1992) (“where the relevant inquiry concerns the reactions of persons now deceased
to hypothetical warnings, the proof of causation becomes more difficult or,
depending on one's point of view, more unreal”); Technical Chemical Co. v.
Jacobs, 480 S.W.2d 602 (Tex., 1972) (“[i]f the user of a product dies from its use,
testimony whether he did or did not read the label may be impossible”). Thus, the
lethal consequence of asbestos disease supports a heeding presumption.
And since an adequate warning would have had to apprise the plaintiff that a
failure to protect himself could result in his death (see Lancaster Silo, 75 A.D.2d
55, supra at 65 (“[t]he degree of danger is a crucial factor in determining the
specificity required in a warning”)), a heeding presumption is further supported by
the policy considerations addressed to self-preservation. See Schelberger v.
Eastern Sav. Bank, supra.
In this regard, it is telling that defendant manufacturers like Appellant not
only object to rebuttable heeding presumptions, but they also uniformly object to
any testimony from a plaintiff regarding whether he would have heeded a warning
79
had one been provided at the time of his exposure, on the purported basis that it is
speculative (R. 472-73[549-54], 5512); (see App. Brief at 62). This testimony is
predicated on the decedent’s own personal experience and knowledge, and
therefore is not speculation, but if a trial court sustained such an objection, a
rebuttable heeding presumption would likely be the only possible way for a
plaintiff to meet her burden as to causation. Such an equitable precept has, in fact,
been part of our jurisprudence for over a century. See Schafer v. Mayor of City of
N. Y., 154 N.Y. 466, 472 (1897) (burden should be lessened where only the
plaintiff’s decedent could have testified that he sought to avoid the danger).
In essence, Appellant takes the untenable position that an asbestos plaintiff’s
causation burden must be met without the benefit of either direct testimony, since
it is purportedly speculative, or a rebuttable presumption. Accepting this would
create an impossible burden. See Payne v. Soft Sheen Products, Inc., 486 A.2d
712 (D.C. Cir., 1985) (a rule requiring a plaintiff to prove with direct evidence that
had a warning been given, it would have been heeded, “would impose an
impossible burden on the plaintiff…”).
Therefore, a heeding presumption is supported by clear public policy.
80
D. The Heeding Presumption Was Properly Charged In This Case,
And The Proximate Cause Charge Was Otherwise Adequate To
Convey The Proper Standards
Here, Supreme Court charged that:
…Mr. Dummitt contends that he would have heeded warnings
and not have been injured.
Mr. Dummitt is entitled to the presumption that had proper and
adequate warnings been given regarding the use of the product,
the warnings would have been heeded and injury avoided.
(R 2033[4075]).
23
Upon a request from Appellant to charge that the presumption
was rebuttable (R. 2045[4122], 2046[4127-28]), Supreme Court clarified:
…if you recall, as to Mr. Dummitt, I charged you that he
contends that had warnings been given, he would have heeded
the warnings and not been injured. This is part of Mr.
Dummitt's burden of proving that the failure to warn was a
substantial factor in causing his mesothelioma.
Mr. Dummitt on this issue is entitled, as I've previously
instructed you, to a presumption that had proper and adequate
warnings been given regarding the use of the product, he would
have heeded the -- the warnings would have been heeded and
injury would have been avoided.
This, however, is a rebuttable presumption. In other words, you
can consider other evidence in the case to see if that other
evidence rebuts this presumption to which Mr. Dummitt is
entitled.
(R 2048[4135-36]) (emphasis added). Thus, Appellant got the charge it requested,
which is a forfeiture of appellate review. See People v. Lewis, 5 N.Y.3d 546, 551,
23
Plaintiff asserted, from the beginning of the trial, that the heeding presumption even in
this form was a rebuttable one (R. 472[549-50]).
81
840 N.E.2d 1014 (2005) (appellate review forfeited where “defense counsel
expressly asked the court to” instruct the jury on the challenged charge); Schaefer
v. N.Y.C. Transit Authority, 96 A.D.3d 485, 946 N.Y.S.2d 154 (1st Dept., 2012).
In any event, this stand-alone clarification was actually the last instruction
the jury heard before deliberating. Cf. People v. Morris, 21 N.Y.3d 588, supra at
598 (it is presumed that a jury will follow a court’s instructions). As such, the
charge as given could not possibly have indicated to the jury that the heeding
presumption was conclusive or that it shifted the burden. Cf. People v. Williams,
301 A.D.2d 794, 754 N.Y.S.2d 401 (3d Dept., 2003) (“the charge, as a whole,
adequately conveyed that the People bear the burden of proof during all stages and
that the jury can accept or reject the presumption based upon its evaluation of the
facts”). Contrary to the Appellate Division dissenters, the charge did not “shift the
burden of proof” (COA 61), it merely shifted the burden of production. See
Liriano II, supra at 271-72.
Furthermore, the jury charge otherwise tracked the P.J.I. as to proximate
cause and the burdens of proof (R. 2032-34[4073-81]). See P.J.I. 1:60, 2:70,
2:275.1, vol. 1A, pp. 70, 394; vol. 1B, p. 779 (2014 ed.). And the jury was
instructed three times in addition to the presumption clarification that it was
Plaintiff’s burden to prove causation (R. 2030[4065], 2031[4067], 2034[4081]).
82
Accordingly, the heeding presumption was properly charged and the charge
as a whole conveyed the proper standards as to the burdens of proof and causation.
E. Even Assuming Arguendo That A Rebuttable Heeding
Presumption Does Not Exist, Plaintiff Did Not Rely Upon It To
Establish A Prima Facie Case
Since Plaintiff presented evidence that the decedent would have heeded an
adequate warning had one been given, and the charge clearly conveyed that the
burden remained with Plaintiff, any purported error in the charge did not prejudice
Appellant to a substantial right. See C.P.L.R. § 2002.
24
The decedent testified that he would have heeded a warning had one been
given, which would not have interfered with his duties (R. 5512).
25
Since this
testimony was based on the decedent’s personal knowledge, it was not speculative.
Cf. Andersen v. Delaney, 269 A.D.2d 193, 703 N.Y.S.2d 714 (1st Dept., 2000)
(plaintiff’s testimony about what she would have done had she been informed of
the risks of surgery was competent evidence); Kirschhoffer v. Van Dyke, 173
A.D.2d 7, 577 N.Y.S.2d 512 (3d Dept., 1991). Nor was this testimony the “sole”
evidence presented on this issue (see App. Brief at 3).
24
Even if no heeding presumption exists, a heeding inference should exist (see Raney v
Owens-Illinois, Inc., 897 F.2d 94, supra at 95), which in this case would lead to the same result.
25
Appellant twists the facts by asserting that the only way Mr. Dummitt could have
protected himself was by ceasing to perform the work he was directed to perform (see App. Brief
at 19). That disregards safe work practices like masks and wetting down methods as testified to
by Mr. Dummitt (R. 5512).
83
Mr. Dummitt protected his subordinates by making sure they heeded
warnings (R. 5514). Certainly, the jury could have reasonably inferred that where
the decedent took unconditional efforts to warn and protect his subordinates from
product hazards to which he was made aware, he would have heeded warnings
himself. Further, he keenly read safety plaques on equipment and actively referred
to the instruction manuals for further precautions (R. 1352[2539], 5512-13).
Plaintiff, therefore, did not rely upon the heeding presumption to establish
her prima facie case, as the Appellate Division majority noted and the dissent
effectively conceded (COA 62) (“I do not take issue with the majority’s statement
that the Dummitt plaintiff presented evidence that Mr. Dummitt would have
received ‘[a]ny warning ... and ... clearly testified that he would have heeded those
warnings and taken steps to protect himself’”).
It is also noteworthy that Appellant presented evidence that the decedent, as
a smoker, ignored warnings on cigarettes “730,000” times (R. 1864-65[3728-29]),
and Supreme Court expressly noted that Appellant could argue this to the jury (R.
1775[3513-14]). Thus, Appellant was permitted to rebut the foregoing evidence,
and the issue was properly left to the jury. Nor is there any indication of jury
confusion in the verdict as a result of this charge. Cf. Reis v. Volvo Cars of North
America, 24 N.Y.3d 35, 43, 993 N.Y.S.2d 672 (2014) (where “charge as a whole
84
adequately explains general negligence principles, a reviewing court may feel
confident in concluding” that an isolated mistake did not affect the verdict).
Accordingly, the heeding presumption was properly charged, but error, if
any, was in all events harmless.
III. THE SPECULATIVE OPINION TESTIMONY OF APPELLANT’S
NAVAL EXPERT WAS PROVIDENTLY EXCLUDED
A distinct causation element from whether the decedent would have heeded
a warning is whether a warning would have reached him.
26
To disprove this
element, Appellant attempted to elicit speculative opinion testimony from its
expert, Admiral Sargent, that if Crane would have attempted to give a warning at
any time between 1940 and 1980, the Navy would have rejected it. It is submitted
that this issue should not be considered since Appellant failed to raise it before the
Appellate Division, but even if considered, Supreme Court’s preclusionary ruling
was not an abuse of discretion.
26
Appellant’s argument that the testimony of Admiral Sargent was intended to rebut Mr.
Dummitt’s heeding testimony confuses these distinct elements (see App. Brief at 64). Evidence
going to rebut Mr. Dummitt’s testimony that he would have heeded a warning would have been
evidence that he would not have heeded a warning, whereas Admiral Sargent’s improper opinion
testimony was intended to disprove that a warning would have reached the decedent.
85
A. This Court Should Decline To Consider Whether The Exclusion
Of Admiral Sargent’s Opinion Testimony Constituted Reversible
Error
Although the Appellate Division addressed this issue, Appellant did not
argue before the Appellate Division that this ruling constituted reversible error
warranting a new trial. Appellant’s only reference to this ruling was a passing one
in the “Statement of Facts” section of its First Department Opening Brief (see App.
First Dept. Brief at 11-12). In its argument section, however, Appellant addressed
only the heeding presumption and Plaintiff’s purported lack of causation evidence
(see App. First Dep. Brief at 42-47).
27
As such, this argument was not actually
briefed before the Appellate Division.
It is not surprising, then, that the Appellate Division dissenters went astray
when they concluded that this speculative opinion testimony was precluded on
mere relevancy grounds (COA 62-65). See Bingham v. New York City Transit
Authority, 99 N.Y.2d 355, 359, 786 N.E.2d 28 (2003) (“[h]ad defendants’ new
argument been presented below, plaintiff would have had the opportunity to make
a factual showing or legal argument that might have undermined defendants’
position”). Thus, this Court should decline to review this issue. See id.
27
This is precisely why, as the Appellate Division dissenters noted, Plaintiff did not
address this issue in the causation section of her Appellate Division Respondent’s Brief (COA
65). Appellant raised it for the first time in its Reply Brief.
86
In any event, Supreme Court did not abuse its discretion in precluding this
expert opinion testimony. See People v. Miller, 91 N.Y.2d 372, 379, 694 N.E.2d
61 (1998) (review of the admission of expert testimony is “‘generally unwarranted’
in the absence of an abuse of discretion”).
B. Admiral Sargent’s Opinion Testimony Addressed To Whether
The Navy Would Have Accepted A Warning From Crane If
Crane Would Have Attempted To Provide One Was Providently
Precluded As Supposition Predicated On Speculation
Supreme Court providently precluded Admiral Sargent’s opinion testimony
as an assumption rested on speculative assumption. The Appellate Division
dissenters concluded that it was reversible error to preclude this opinion testimony
since it was relevant to the issue of causation (COA 62-65). But, significantly,
Supreme Court precluded this opinion on the grounds that it was based on
improper speculation, not relevancy:
[APPELLANT’S TRIAL COUNSEL]: I would ask the
additional question if Crane had added a warning at any time
from the '40s to the '70s would the Navy have accepted the
warning. My understanding from an off-the-record discussion[]
I would not be permitted to ask that question. I'm just making
an offer of proof through this 40-year window, the answer
would be no.
[colloquy omitted]
THE COURT: …I find that would be speculation, the answer to
that question.
87
(R. 1520-21[2938-40]. The post-verdict decision reiterated the basis for Supreme
Court’s ruling (R. 75-76) (”…the opinion of the Navy witness was based on pure
speculation…”). Thus, the Appellate Division dissenters’ mistaken belief that this
opinion was precluded on relevancy grounds, and their conclusion that reversible
error was committed as a result, is of no moment (COA 62-63).
To this end, it is well-settled that “the admission of expert testimony lies
within the sound discretion of the trial court” (People v. Miller, supra), and
“opinion evidence must be based on facts in the record or personally known to the
witness.” Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 159 N.E.2d 348 (1959). An
expert opinion predicated on speculation is “worthless as evidence.” Id.
Here, Admiral Sargent did not begin working for the Naval Sea Systems
Command (“NAVSEA”) – the Navy organization that dealt with procurement of
equipment – until 1988 (R. 1504[2872]). Therefore, he has no personal knowledge
to support an opinion about what the Navy would have done if Crane would have
attempted to warn at any time between 1940 and 1980.
28
Nor were there any facts presented to Admiral Sargent, let alone in the
record, upon which he could base an inferential opinion. There is not a shred of
28
Indeed, NAVSEA did not arise until the 1970s, when the “bureau system was
renamed” to create “today’s version of what occurred during World War II on new ships” (R
1508[2888]). Admiral Sargent even admitted that the process of ship building and acquisition of
equipment “changed somewhat more recently” from the time when Mr. Dummitt’s ships were
built (R. 1508[2889]). He, therefore, has no personal knowledge of what the NAVSEA’s
predecessor “would have done” in a hypothetical situation.
88
evidence showing that Crane, or any other manufacturer, ever attempted to warn
the Navy of the dangers of asbestos, which was admitted by Appellant (R. 5446).
There is not a shred of evidence that the Navy ever rejected a warning of any type
from a manufacturer, let alone an asbestos warning. In fact, despite the
“excruciating detail” of the military specifications (R. 1506[2879]), they were
utterly silent as to a prescription or proscription of asbestos warnings.
To the contrary, the Navy actually emphasized that manufacturers should
comply with their duty to warn (R. 1486[2800], 5447-48), and the decedent
testified that some manufacturers did warn (R. 5512-14). Admiral Sargent
acknowledged that Specification 15071, which was for instruction manuals, was
incorporated into certain valve specifications (R. 1516-17[2922-25]).
Specification 15071 provides that warnings should be provided by the
manufacturer for “operation procedures, practices, etc., which will result in
personal injury and loss of life if not correctly followed” (R. 1487-88[2805-07]).
Other specifications directed manufacturers to warn about “special hazards” (R.
1487[2803-04]). And others promoted the Navy’s intent to “accept the
manufacturer’s commercial type of manual…” (R. 1487[2805-06]), in which Crane
certainly should have warned.
Admiral Sargent acknowledged that specifications permitted additional
space on equipment nameplates to provide information for “safe handling,
89
operation and maintenance of the major unit or set” (R. 1518[2928-29]), and he
expressly testified that whether additional space was available for safety
information would depend upon the specification invoked pursuant to the
particular contract at issue (R. 1518[2930]; see also R. 1497[2843]).
29
But
Admiral Sargent never reviewed any Crane contracts for the sale of valves to the
Navy, so he could not say what specifications were invoked for any given Crane
valve to which the decedent was exposed (R. 1522[2945-46]). Thus, not only was
the proposed opinion testimony unsupported, it was expressly contradicted by
evidence in the record that Admiral Sargent acknowledged. See Guzman v. 4030
Bronx Blvd. Associates L.L.C., 54 A.D.3d 42, 861 N.Y.S.2d 298 (1st Dept., 2008)
(expert “failed to offer or identify any objective medical evidence to support his
conclusion” and “when faced with objective medical evidence [to the contrary],
plaintiffs’ expert dismissed it without sufficient explanation”). Thus, Admiral
Sargent’s speculative opinion is “worthless as evidence.” Cassano, supra. To have
admitted this opinion testimony would have constituted an abuse of discretion. See
Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22 (2d Cir., 1996) (“[a]dmission
of expert testimony based on speculative assumptions is an abuse of discretion”).
29
Even crediting Admiral Sargent’s testimony that a nameplate on one type of valve did
not permit information beyond what was specified (R. 1511-12[2901-03]), this has no bearing on
Appellant’s ability to have warned in its instruction pamphlets. Therefore, this testimony could
not support an opinion that the Navy would not have, in any instance, permitted a warning.
90
Appellant was further providently precluded from eliciting testimony from
Admiral Sargent that in 1985 – well after the decedent’s exposure period – he was
aware of one instance where another manufacturer attempted to use a nonasbestos
gaskets and the Navy rejected that substitution of material (R. 1510[2896-97],
1519-20[2934-35]). Supreme Court correctly precluded this post-exposure,
design-specific evidence on relevancy grounds (R. 1520[2935-37]). Indeed, since
a manufacturer’s ability to have warned differs both practically and theoretically
from its ability to have altered technical designs, the Appellate Division majority
appropriately found support in caselaw regarding the government contractor
defense. See Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir., 1996)
(quoting Tate v. Boeing Helicopters, Inc, 55 F.3d 1150, 1156 (6th Cir., 1995))
(“[s]imply because the government exercises discretion in approving a design does
not mean that the government considered the appropriate warnings, if any, that
should accompany the product”), cert. denied 520 U.S. 1116; In re Hawaii Federal
Asbestos Cases, 960 F.2d 806, 812-13 (9th Cir., 1992); In re Joint E. & S. Dist.
N.Y. Asbestos Litig. [Grispo], 897 F.2d 626, 630-32 (2d Cir., 1990).
But even assuming there was some basis to support this testimony,
preclusion did not rise to the level of an abuse of discretion sufficient to warrant a
new trial. The Appellate Division majority was correct in noting that this opinion
91
testimony, even if admitted, would have made no difference. See Oboler v. City of
New York, 8 N.Y.3d 888, 864 N.E.2d 1270 (2007).
Accordingly, Admiral Sargent’s speculative opinion testimony was
providently precluded, and a new trial is not warranted.
IV. APPELLANT’S REMAINING CONTENTIONS SHOULD BE
AUTOMATICALLY AFFIRMED AS NONREVIEWABLE, BUT
EVEN IF CONSIDERED, THEY ARE MERITLESS
A. Appellant’s Challenge To The Apportionment Of Fault Is
Nonreviewable And, In Any Event, Baseless
Appellant’s argument that the “jury’s fault allocation was against the weight
of the evidence” (App. Brief at 66-68) is outside this Court’s scope of review, and
thus should result in an automatic affirmance on this issue. See Vadala v. Carroll,
59 N.Y.2d 751, 752-53, 463 N.Y.S.2d 432 (1983); see also Lucas v. New York
City Tr. Auth., 163 A.D.2d 21, 557 N.Y.S.2d 919 (1st Dept., 1990), appeal
dismissed 76 N.Y.2d 933, 563 N.Y.S.2d 58 (1990).
In any event, Appellant’s argument is baseless. Appellant failed to prove,
and in fact did not even attempt to prove, that any nonparty was negligent in failing
to warn or that such negligence was a proximate cause of the decedent’s injury (R.
2169-74). See C.P.L.R. § 1603; In re New York Asbestos Litig. [Marshall], 28
A.D.3d 255, 256, 812 N.Y.S.2d 514 (1st Dept., 2006); Lustenring v. AC&S, Inc.,
13 A.D.3d 69, 786 N.Y.S.2d 20 (1st Dept., 2004), lv denied 4 N.Y.3d 708 (2005).
The allocation of fault, therefore, was based on the decedent’s exposure to asbestos
92
from Crane valves, thousands of times, on all seven ships of his service, compared
to his exposure just 23 times to one Elliott tank on one ship (R. 875[1483-84],
5509-10), and further based on Crane’s actual knowledge of the dangers of
asbestos (R. 1267-77[2372-2411], 1414-15[2657-64], 5432-40), compared to
Elliott’s mere constructive knowledge (R. 1412-16[2650-66]). Thus, even if
reviewable, the fault allocation should not be disturbed.
B. Appellant’s Challenge To The Recklessness Finding Is
Nonreviewable And Is Otherwise Subject To The Mootness
Doctrine, But Even If Considered, It Is Baseless
Appellant’s claim that the recklessness finding was against the weight of the
evidence is nonreviewable. See Vadala, supra. Nor does Appellant challenge the
legal sufficiency of the recklessness finding, which in any event is unpreserved and
thus also nonreviewable. See Merrill, 71 N.Y.2d 990, supra. But even if
reviewable, this issue is nonetheless subject to the mootness doctrine. See Hearst
Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400 (1980).
C.P.L.R. § 1601 provides that a tortfeasor that is less than 50% at fault is
only severally liable for its percentage of fault, whereas a tortfeasor that is more
than 50% at fault is jointly and severally liable. When the tortfeasor is apportioned
less than 50% fault, C.P.L.R. § 1602 provides exceptions that, if established,
preserve the rule of joint and several liability. Recklessness is one such exception.
93
See C.P.L.R. § 1602(7). Thus, the recklessness exception is only triggered when a
tortfeasor is less than 50% at fault.
Here, since the apportionment of 99% fault to Crane must be automatically
affirmed, Appellant is jointly and severally liable irrespective of whether the
recklessness finding was properly made. See C.P.L.R. § 1601. Thus, the
recklessness issue is moot because it will not change the outcome of this appeal.
See Matter of Barbara C., 64 N.Y.2d 866, 487 N.Y.S.2d 549 (1985).
Nor are any exceptions to the mootness doctrine satisfied. This Court has
noted that “exception to the doctrine discloses three common factors: (1) a
likelihood of repetition, either between the parties or among other members of the
public; (2) a phenomenon typically evading review; and (3) a showing of
significant or important questions not previously passed on, i. e., substantial and
novel issues.” Hearst Corp. v. Clyne, supra at 714-15.
The law on recklessness is well-settled (see Maltese v. Westinghouse
Electric Corp., 89 N.Y.2d 955, 655 N.Y.S.2d 855 (1997)), and this Court recently
declined to revisit it. See In re Eighth Judicial District Asbestos Litig. [Drabczyk],
92 A.D.3d 1259, 938 N.Y.S.2d 715 (4th Dept., 2012), lv denied 19 N.Y.3d 803
(2012). Thus, this is not a novel issue, and it is not one that typically evades
review. Nor is there a likelihood of repetition, as it has only been addressed a
handful of times since the Maltese decision 17 years ago. See, e.g., In re New
94
York City Asbestos Litig. [D=Ulisse], 16 Misc.3d 945, 842 N.Y.S.2d 333 (Sup. Ct.,
N.Y. Co., 2007), appeal withdrawn 874 N.Y.S.2d 912 (1st Dept., 2009). In any
case, any claimed repetition would be guided by the settled Maltese standard.
Since no exceptions to the mootness doctrine apply here, the result should be an
automatic affirmance on this issue. See Hearst Corp., supra.
But even if considered, Appellant’s argument is wholly meritless.
30
Contrary to Appellant’s unsupported assertion that recklessness should be narrowly
construed (see App. Brief at 70), it is C.P.L.R. § 1601 that should be narrowly
construed because it is in derogation of the common law rule of joint and several
liability. See McKinney’s Statutes § 301(a) (“statutes in derogation of the
common law receive a strict construction”). By correlation, an exception to
C.P.L.R. § 1601 like recklessness, which “preserve[s] the common law rule,”
should be broadly construed. Rangolan v. County of Nassau, 96 N.Y.2d 42, 46,
749 N.E.2d 178 (2001).
Here, the broadly construed Maltese standard is satisfied based on the same
facts as discussed supra in Section I(B)(i)(6) at 54-56. These facts show Crane’s
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Appellant’s assertion that recklessness was not properly pleaded is unpreserved and
nonreviewable where it was raised for the first time in Appellant’s post-verdict motion. See
Grzesiak v. General Elec. Co., 68 N.Y.2d 937, supra at 938-39. And even if it had been
preserved, Appellant forfeited appellate review by conceding at trial that recklessness had been
pleaded (R. 787[1305], 1690[3286], 1850[3669-70]). See People v. Lewis, 5 N.Y.3d 546, supra
at 551. In any event, the complaint not only used the word “reckless” multiple times, it also
tracked the language of C.P.L.R. § 1602(7), pleading that Appellant acted with a “reckless
disregard for his/her safety and well-being” (R. 140-142). Appellant clearly had notice.
95
admitted awareness of the risks associated with the exact components at issue,
running to the exact class of workers at issue, and Crane’s conscious indifference
in failing to warn despite its actual knowledge, with a high probability of death
therefrom.
Additionally, the recklessness charge adequately conveyed the proper
standard. Supreme Court mirrored P.J.I. 2:275.2 (formerly numbered 2:275.4
(2011 ed.)) in charging recklessness (R. 1850[3672], 2033[4075-76]). See
Spensieri v. Lasky, 94 N.Y.2d 231, 239-40, 723 N.E.2d 544 (1999) (charge is
adequate where it “substantially conforms” to the P.J.I.). In essence, Crane asserts
that the recklessness charge approved by the P.J.I. committee does not conform to
the Maltese standard, despite the first sentence in the commentary providing that
the charge is based on Maltese. See P.J.I. 2:275.2, vol. 1B, p.784 (2014 ed.).
Accordingly, even assuming this issue is reviewable and an exception to the
mootness doctrine is satisfied, the recklessness finding should be affirmed.
C. Appellant’s Challenge To The Quantum Of Damages Is
Nonreviewable And, In Any Event, Baseless
Whether the remitted damages of $8 million – $5.5 million and $2.5 million
for past and future pain and suffering, respectively – constitutes reasonable
compensation is nonreviewable. See Rios v. Smith, 95 N.Y.2d 647, 654, 722
N.Y.S.2d 220 (2001); Tate v. Colabello, 58 N.Y.2d 84, 86 n.1, 459 N.Y.S.2d 422
96
(1983). This should result in an automatic affirmance on this issue. In any event,
the damages are reasonable considering the decedent’s 33 months of excruciating
and escalating pain and suffering (R. 399-400[392-96], 414-22[453-54, 458, 469,
473-75, 483], 5516-17).
CONCLUSION
For the foregoing reasons, it is respectfully submitted that the order of the
Appellate Division should be affirmed in its entirety, with costs awarded to
Respondent.
Dated: New York, New York
November 12, 2014
Respectfully submitted,
BELLUCK & FOX, LLP
By: ________________________
Seth A. Dymond
546 Fifth Avenue, 4th Floor
New York, New York 10036
T: (212) 681-1575
F: (212) 681-1574
sdymond@belluckfox.com
Attorneys for Plaintiff-Respondent Doris
Kay Dummitt, Individually and as Executrix
of the Estate of Ronald Dummitt, deceased.