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Appellate Court Affirms Increase in Pain and Suffering Award to Mesothelioma Victim

Posted in Mesothelioma

Thomas McGlynn worked as a shipfitter and laborer in shipyards and aboard ships in New York and New Jersey from 1976 until the late 1980’s. During that time, he was exposed to asbestos-containing products including valves manufactured by Jenkins Bros.

In April 2015, Mr. McGlynn, then 74 years old, began suffering from what was later (in May 2016) diagnosed as pleural mesothelioma.

He commenced a lawsuit against Jenkins and others in August 2016 and one year later, a Manhattan jury (a) determined that Jenkins failed to provide adequate warnings about the hazards of asbestos exposure in its products and (b) awarded pain and suffering damages in the sum of $3,300,000 ($1,800,000 past – 28 months, $1,500,000 future – six months to one year).

Plaintiff successfully argued in a post-trial motion that the pain and suffering award was unreasonably low. The trial judge ordered an increase in pain and suffering damages to $6,500,000 ($4,000,000 past, $2,500,000 future).

In Idell v. Aerco International, Inc. (1st Dept. 2018), the appellate court affirmed the increase in past pain and suffering damages to $4,000,000 but reinstated the jury’s $1,500,000 award for future pain and suffering. Thus, the total pain and suffering award stands at $5,500,000 ($4,000,000 past, $1,500,000 future).

The evidence of plaintiff’s pain and suffering was supported by the testimony of a physician and two of plaintiff’s close friends and  included the following facts:

  • three major surgeries (including a pleurectomy/decortication, a two part procedure involving opening the chest cavity and removing the pleural lining around the lungs and then removing any visible tumor masses)

  • eight weeks in hospital for surgeries
  • multiple drainings of liters of pleural fluid
  • six rounds of chemotherapy and radiation with severe side effects (especially, gastrointestinal)
  • inability to hold food or liquids down, or breathe without forced oxygen
  • breakthrough pain, despite pain medications, with resulting inability to sleep
  • difficulty breathing, including “air hunger”, causing frequent struggles to catch breath
  • hospice admission after attending trial only for opening statement
  • death 8/31/17 (13 days after jury verdict)

Inside Information:

  • After Mr. McGlynn’s death, his close family friend and caregiver Anna Idell, was named executrix of his estate.
  • Jenkins was found to have acted recklessly because for decades it had personal knowledge of the hazards of asbestos and failed to place any warnings on its asbestos containing valves. That finding made Jenkins liable for the full amount of the verdict despite the fact that it was apportioned only 15% of the liability (with five other defendants accounting for the other 85%).
  • In their summations, plaintiff’s counsel suggested that the jury award $28,000,000 whereas defense counsel suggested $750,000.