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Lustenring v. AC&S, Inc., et al.

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 2004
13 A.D.3d 69 (N.Y. App. Div. 2004)

Summary

In Lustenring, competent evidence was provided of long periods of daily working in dust laden with asbestos generated from products containing asbestos, and valid expert testimony that dust raised from manipulating asbestos products, "necessarily" contains enough asbestos to cause mesothelioma (13 A.D.3d at 70, 786 N.Y.S.2d 20).

Summary of this case from Juni v. A.O. Smith Water Prods. Co. (In re N.Y.C. Asbestos Litig.)

Opinion

4786, 4787.

December 2, 2004.

Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 12, 2003, which, after a jury trial, awarded plaintiff Lustenring the total amount of $4,395,058, and judgment, same court and Justice, entered September 30, 2003, which, after the same jury trial, awarded plaintiff Matteson the total amount of $3,277,864.65, unanimously affirmed, without costs.

Before: Sullivan, J.P., Ellerin, Lerner, Marlow and Catterson, JJ.


The evidence, fairly interpreted, permitted the verdicts reached by the jury ( see Matter of New York City Asbestos Litig. [ Brooklyn Naval Shipyard Cases], 188 AD2d 214, 225, affd 82 NY2d 821). Indeed, the evidence showed that both plaintiffs worked all day for long periods in clouds of dust raised specifically by the manipulation and crushing of defendant's packing and gaskets, which were made with asbestos. Valid expert testimony indicated that such dust, raised from asbestos products and not just from industrial air in general, necessarily contains enough asbestos to cause mesothelioma. Defendant's factual disagreement with plaintiffs' causation theory did not require a Frye hearing ( see Gayle v. Port Auth. of N.Y. N.J., 6 AD3d 183, 184). The evidence also supported the verdict that defendant did not sustain its burden of showing that negligence by nonparty defendants was a significant cause of plaintiffs' injuries ( see Matter of New York City Asbestos Litig. [ Ronsini v. Garlock, Inc.], 256 AD2d 250, 252, lv denied 93 NY2d 818, cert denied sub nom. Worthington Corp. v. Ronsini, 529 US 1019). We have reviewed defendant's remaining arguments for a new trial, respecting purportedly erroneous trial rulings, and find that any such errors did not deprive defendant of a fair trial. The damages do not deviate materially from what is reasonable compensation under the circumstances (CPLR 5501 [c]).


Summaries of

Lustenring v. AC&S, Inc., et al.

Appellate Division of the Supreme Court of New York, First Department
Dec 2, 2004
13 A.D.3d 69 (N.Y. App. Div. 2004)

In Lustenring, competent evidence was provided of long periods of daily working in dust laden with asbestos generated from products containing asbestos, and valid expert testimony that dust raised from manipulating asbestos products, "necessarily" contains enough asbestos to cause mesothelioma (13 A.D.3d at 70, 786 N.Y.S.2d 20).

Summary of this case from Juni v. A.O. Smith Water Prods. Co. (In re N.Y.C. Asbestos Litig.)

In Lustenring, long cited for the sufficiency of visible dust evidence, the First Department found the evidence sufficient where the expert testified that clouds of dust created during the long hours plaintiff worked manipulating defendant's gaskets and packing, "necessarily contained enough asbestos to cause mesotheliom."

Summary of this case from Robaey v. Air & Liquid Sys. Corp.

In Lustenring v. AC&S, Inc., 13 A.D.3d 69 (1 Dept 2004), lv. denied, 4 N.Y.3d 708 (2005), the First Department addressed what showing must be made to establish specific causation in an asbestos case.

Summary of this case from NYC Asbestos Litig. v. BMW of N. Am.

In Lustenring, the First Department also stated it is not novel science for a party to introduce expert testimony showing that a plaintiff who was exposed to visible dust containing asbestos fibers contracted mesothelioma as a result of that exposure, thus obviating the need for a Frye hearing (id.; see also). The following year, the First Department held in Wiegman v. A C & S, 24 AD3d 375 (1st Dept 2005) that a defendant's "claim that a Frye hearing should have been held is without merit.

Summary of this case from Re v. A.O. Smith Water Prods. Co.
Case details for

Lustenring v. AC&S, Inc., et al.

Case Details

Full title:NATALIE B. LUSTENRING, Individually and as Executrix of JOHN K…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 2, 2004

Citations

13 A.D.3d 69 (N.Y. App. Div. 2004)
786 N.Y.S.2d 20

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