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Two Mesothelioma Cases Addressed by Appellate Courts

Posted in Mesothelioma

For many years in the 1970’s Walter Miller had worked at automobile service shops grinding automotive brakes that contained asbestos. In late 2013, Mr. Miller, then 61 years old, began getting tired and out of breath from simple tasks. He went to his physician and had to have 2 ½ liters of fluid drained from his lung. After another episode, further testing and invasive procedures including another huge fluid removal procedure, he was diagnosed with mesothelioma.

Since his diagnosis, Mr. Miller underwent several rounds of debilitating chemotherapy, the application of radiation and, in September 2014, the surgical removal of one lung, the surrounding pleura and his diaphragm. After 10 days in the hospital for the surgery, Mr. Miller, who lived alone, spent six gruesome weeks trying to recover at his brother’s home. Unfortunately, his condition was terminal and he was not expected to live more than 1-2 years after trial during which time a physician testified his tumor would recur and spread, causing weight loss, pain, fatigue, shortness of breath and narcotic pain medication.

In his lawsuit against the manufacturer and designer of a grinder plaintiff used over the years, on 9/25/15, the Manhattan jury awarded pain and suffering damages in the sum of $25,000,000 ($10,000,000 past, $15,000,000 future – one year).

In a post-trial motion addressing the amount of the damages awards, defense counsel suggested a reduction $4,500,000 while plaintiff’s counsel suggested $18,000,000.The trial judge issued a decision reducing the award to $9,000,000 ($5,000,000 past, $4,000,000 future) an amount stipulated to by plaintiff and affirmed on appeal in Miller v. BMW of North America, LLC (1st Dept. 2017).

 

Nicholas Dominick, a 64 year old retiree, was diagnosed with mesothelioma and cancer of a lung in the fall of 2013. Mr. Dominick had worked at a manufacturing plant in Utica in the 1970’s operating a grinding machine. He claimed that his mesothelioma stemmed from his inhalation of fibers of asbestos from products supplied by the defendant that were used in the plant where Mr. Dominick worked.

Shortly after his diagnosis, Mr. Dominick underwent a pleurectomy, which involved the removal of the inner and outer lining of his left lung. Then he underwent four cycles of chemotherapy and daily application of radiation for six weeks. Side effects included pneumonitis (inflammation of the lungs) and violent fevers. At trial in March 2015, plaintiff was suffering from severely impaired respiration, leaving him unable to perform most activities of daily living. His doctors estimated he would survive one to two years.

In Dominick v. Charles Millar & Son Co. (4th Dept. 2017),  an upstae appellate court affirmed an Oneida County jury award of pain and suffering damages in the sum of $4,000,000 ($1,000,000 past –  two years, $3,000,000 future – one year).