Just two months ago, here, we reviewed recent appellate court decisions dealing with pain and suffering damages in mesothelioma cases. The same appellate court has issued decisions in three more cases involving similar issues and damages. In all of the cases, hard-working men suffered horribly difficult final years before succumbing to a premature death due to the ravages of mesothelioma. In each case, the jury’s award for pain and suffering was drastically slashed by the courts.
Selwyn Hackshaw was a retiree in his early 70’s in late 2012 when he learned he was suffering from mesothelioma. For many years he’d been an electrician and a pipe fitter, working at plants installing and repairing gaskets and valves manufactured by Crane Company containing asbestos.
Hackshaw sued Crane claiming that his mesothelioma was caused by his inhalation of asbestos in gaskets, insulation and valves that he’d handled over the years. During the tendency of his lawsuit but before trial, Mr. Hackshaw died from the disease on August 3, 2013.
On June 16, 2014 a Manhattan jury returned a verdict finding that Crane had failed to provide adequate warnings about the hazards of exposure to asbestos regarding its products and that its negligence caused Mr. Hackshaw’s mesothelioma. The jury then awarded pain and suffering damages in the sum of $10,000,000 (past – 12 months).
On January 7, 2015 the trial judge reduced the damages to $6,000,000 and in Hackshaw v. ABB, Inc. (1st Dept. 2016), the appellate court further reduced the damages to $3,000,000.
Ivan Sweberg was also a retiree when he learned in mid-2012, at the age of 70, that he too was suffering from mesothelioma. Mr. Sweberg had been an electrician involved in the construction of buildings from 1956-1972 when he worked with others who were installing and removing asbestos manufactured by Crane.
In Mr. Sweberg’s lawsuit against Crane (consolidated for trial with Mr. Hackshaw’s lawsuit), the jury found Crane liable and awarded pain and suffering damages in the sum of $15,000,000 ($5,000,000 past – two years, $10,000,000 future – 1.5 years).
The trial judge reduced the damages to $10,000,000 ($5,000,000 past, $5,000,000 future) and in Sweberg v. ABB, Inc. (1st Dept. 2016), the appellate court further reduced the damages to $9,500,000 ($5,000,000 past, $4,500,000 future).
Ivo Peraica was 63 years old in August 2011 when he learned that he was suffering from mesothelioma. For many years, Mr. Sweberg serviced boilers manufactured by Crane that contained asbestos and his inhalation of fibers of asbestos caused mesothelioma.
Mr. Peraica sued Crane but died from mesothelioma before trial, on December 28, 2012, at the age of 64. On March 1, 2013, a Manhattan jury found Crane liable and awarded pain and suffering damages in the sum of $35,000,000 (past – 17 months).
The trial judge reduced the damages to $18,000,000 and in Peraica v. A.O. Smith Water Products Co. (1st Dept. 2016), the appellate court further reduced the damages to $4,250,000.
- In each of the three cases, there were several defendants other than Crane and the jurors were instructed to apportion liability among them all (some defendants no longer existed, others had settled, etc.). Here are the verdict sheets in the Hackshaw and Sweberg cases.
- The post-trial decision in Hackshaw and Sweberg is here and in Peraica, here.
- The juries determined that Crane acted with reckless disregard for the safety of others, thereby negating the liability limitations of CPLR Section 1601 and restoring Crane’s joint and several liability. Pursuant to General Obligations Law (“GOL”) Section 15-108, though, plaintiffs’ verdicts in these cases, as reduced by the post-trial decisions (but before the additional appellate court reductions), were further reduced, in each case, by the greater of the aggregate pre-verdict settlements with other defendants or their aggregate percentages of fault. In Hackshaw, therefore, plaintiff’s judgment (before interest) was $2,909,646 and in Sweberg it was for $4,997,200.
- The appellate court decision in Peraica is erroneous as to damages in that it refers to the jury award as $9,900,800 when in fact it was $35,000,000 (thereafter reduced by the trial judge, as mentioned above, to $18,000,000). The judgment against Crane amounted to $9,900,800 (before interest) but that was based first upon the $18,000,000 award from the trial judge and then the reduction of that sum pursuant to the GOL.
- Along with plaintiff’s notice to the appellate court regarding its significant calculation error in Peraica, we expect that plaintiff in Sweberg will accept the relatively small reduction and propose an amended judgment. In both Hackshaw and Peraica, though, we expect plaintiffs will mount a constitutional challenge to the continuing practice of New York’s intermediate appellate courts of reducing jury awards for pain and suffering in mesothelioma cases by millions of dollars, even tens of millions.
- Ivan Sweberg died from his mesothelioma in July 2014.