From 1953 to 1973, Frank Gondar was in the construction business and was exposed to asbestos from insulation used in connection with boilers manufactured and distributed by Burnham Corporation.
In January 2015, when he was 85 years old, Mr. Gondar was diagnosed with mesothelioma which, two months later in his lawsuit against Burnham and others, he claimed was caused by asbestos exposure the dangers of which should have been disclosed to him. The Manhattan jury agreed that Burnham was at fault and awarded pain and suffering damages in the sum of $17,000,000 ($12,000,000 past – 17 months, $10,000,000 future – one month).
The trial judge ordered a reduction of the damages award to $7,000,000 ($5,000,000 past, $2,000,000 future).
In Ford v. A.O. Smith Water Prods. (1st Dept. 2019), the appellate court approved $5,000,000 for past pain and suffering but reduced the award for future pain and suffering to $500,000. The total pain and suffering award has thus been modified downward to $5,500,000.
Here are the injury details:
- initial symptoms – shortness of breath, wheezing and productive cough
- collapsed lung one month after initial symptoms requiring thoracentesis procedure to remove two liters of bloody fluid from his pleural cavity
- diagnosed in mid-February 2015 with inoperable advanced mesothelioma
- pleurodesis (surgery to adhere the pleural membranes together to prevent the continuing accumulation of fluid)
- appetite loss, general weakness, severe anxiety and depression
- 11 rounds of chemotherapy with side effects including severe hearing loss, extreme fatigue, and chest pain, all of which got progressively worse as chemotherapy continued every three weeks
- several rounds of immunotherapy administered directly through his chest
- within a year, reduced to using a wheelchair and completely unable to care for himself
Plaintiff’s counsel claimed that Mr. Gondar’s pain and suffering (including loss of enjoyment of life) was “unparalleled in its scope, magnitude, frequency and extremity for persons in his age range” in large part because Mr. Gondar had, up to the point of his diagnosis (when he was 85 years old), led an extremely active lifestyle that included jet skiing and boating on a daily basis in the summer, snow skiing including team racing and serving as an instructor in the winter, avid scuba diving, motorcycle riding three times a week, hiking, camping and swimming.
Defense counsel argued that the verdict was “so large and unfounded in the evidence that it could only have been a result of passion, prejudice, sympathy, or the consideration or some other improper element of damages.”
- In summations, defense counsel suggested that $2,000,000 would be reasonable for damages; plaintiff’s counsel stated that Mr. Gondar’s largest element of damages was psychological – anxiety about the imminent end of his life – and asked for $12,000,000 for the past plus $6,000,000 for the future.
- Mr. Gondar was too incapacitated to testify at trial. His pre-trial depositions were used instead of his live testimony.
- Mr. Gondar died on 9/18/16; his girlfriend Noreen Ford continued the lawsuit as his executor.