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Loss of Consortium Award Cut in Mesothelioma Case

Posted in Loss of Consortium Damages

For about eight months from 1964 to 1965, Harry Brown was exposed to asbestos while he worked as an insulator at Ravenswood 3, a newly constructed Con Edison powerhouse in Long Island City in Queens.

ravenswood

Mr. Brown was diagnosed with mesothelioma in June of 2012 and died from the disease on September 8, 2013 at the age of 75. He is survived by his wife Phyllis Brown and adult children.

Before he died, Mr. Brown and his wife sued Con Edison and others alleging his exposure to asbestos-containing materials over the course of his 15 year career as an asbestos installer caused his mesothelioma. The suit was based on Labor Law 200 and common law negligence principles that require employers to provide a safe place to work.

After a four month trial, a Manhattan jury rendered a verdict on March 18, 2014 finding that Con Edison had exercised supervision and control over workers at the powerhouse, failed to exercise reasonable care to keep the premises safe and that the failure was a substantial contributing factor in causing plaintiff’s mesothelioma. The jurors then awarded damages for (a) pain and suffering in the sum of $2,500,000 (past only – 18 months) and (b) Mrs. Brown’s loss of services in the sum of $1,000,000 (18 months).

Defendant made a post-trial motion asking the trial judge to set aside the jury verdict claiming that there was insufficient proof that Con Edison exercised supervision and control over Mr. Brown’s work.  The motion was granted in an extensive decision on August 29, 2014 that was adhered to seven months later in a decision following plaintiff’s motion to reargue.

Con Edison did not challenge the pain and suffering award in its post-trial motion but did, alternatively argue that the loss of consortium award was excessive. Although she vacated the judgment and dismissed the complaint against Con Edison, the trial judge also ordered that the loss of consortium award be reduced to $360,000.

Plaintiff appealed arguing that (a) there was sufficient evidence to support the jury’s finding of supervision and control under the statute and (b) the trial judge’s decision insofar as it addressed loss of consortium damages was advisory only in that having granted defendant’s motion to set aside the verdict, the issue of damages then became moot and, therefore, should the appellate court reinstate the liability verdict it should also reinstate the $1,000,000 loss of consortium award.

In Brown v. Bell & Gossett Company (1st Dept. 2017),  the liability verdict against Con Edison has been reinstated and the award for loss of consortium damages has been reduced to $360,000.

The defendant argued that the loss of consortium award was unwarranted based on the fact that at the time of Mr. Brown’s diagnosis and subsequent death, he had been retired from work, his children were grown and no longer living with him, he was also already suffering from stage four prostate cancer (unrelated to his asbestos exposure) and there no testimony from Mrs. Brown to evidence what support and services she lost, other than the loss of her husband’s love and companionship.

Plaintiff argued, and the appellate judges apparently agreed (to an extent) that the defendant and the trial judge overlooked testimony from Mrs. Brown that proved she sustained significant loss of consortium damages. For example, she testified that her husband did repairs on their house including plumbing and building a garage, took care of all of the family finances including paying the bills, maintained the lawn and in general “took care of” both Mrs. Brown and their house. Furthermore, she testified that she assisted her husband daily with the medical consequences of his tragic disease such as draining his surgical incisions, attempting to control diarrhea, helping him move his body and dealing with the emotional problems affecting them both.

Inside Information:

  • Although Mr. Brown died two months before trial, he testified during pre-trial proceedings and the transcript of his deposition was read to the jurors.
  • Since the jury found that Con Edison did not act recklessly, its obligation to pay the damages awarded is limited to 65%:  its 30% proportionate share of liability plus, under CPLR 1602, the 35% share of plaintiff’s employer (defendant Robert A. Keasbey Co.).