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.

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).

 

 

 

 

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.

 

Inside Information:

  • 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.

Between 1966 and 1972, Ralph North  was exposed to asbestos at the Long Island Lighting Company (“LILCO”) power station in Northport where he worked as a welder during construction of a power station.

The LILCO power plant

Asbestos is a mineral whose fibers are invisible and, when cut, they float around in the air and can without notice be breathed into one’s lungs and cause mesothelioma (a malignant cancer that develops on the linings of the lungs).

Asbestos-2_l

Often, this terrible disease’s symptoms may not appear for 20-50 years. That’s what happened to Mr. North who was diagnosed with mesothelioma in January 2013 when he was 78 years old.

He promptly sued claiming that LILCO failed to post warnings or provide protective materials to prevent the amount of asbestos dust he was exposed to by activities such as applying asbestos to insulate boilers, insulating pipes with asbestos-containing materials and cutting asbestos block. The defendant argued that it did not exercise supervision or control over the work of its various contractors. There was evidence, though, that LILCO specified the use of asbestos of insulating pipes and boilers and even specified how the product should be mixed and applied.

On September 29, 2014, a Manhattan jury returned a verdict finding that National Grid Generation LLC (LILCO’s successor) was liable for pain and suffering damages resulting from asbestos exposure that caused plaintiff’s mesothelioma. The jurors then awarded pain and suffering damages in the sum of $7,000,000 ($3,500,000 past – two years, $3,500,000 future).

In North v. National Grid Generation LLC (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • In mid-2012, Mr. North began to suffer from shortness of breath, difficulty breathing and chest pain; he presented to a hospital in January 2013 where he was diagnosed with a left pleural effusion and a left lung collapse and underwent a video assisted thoracoscopy (surgical insertion of an endoscope to visually examine the pleura and lungs and, in this case, to remove six liters of fluid that had filled up his entire chest cavity)
  • second thoracoscopy within a few weeks, this time at Memorial Sloan Kettering Hospital at which time it was clear that there was no area of the lung that could be considered free of mesothelioma which was so extensive that no surgery could remove it
  • vaccinia virus experimental treatment using a benign virus to elicit a response from the body that would limit the mesothelioma
  • thoracotomy (opening the chest wall with a large incision) and pleurectomy (surgical removal of diseased pleura – part of the lining of the lung)
  • radiation  – 20 sessions to try to limit (not cure) the spread of the cancer; the radfiation itself caused difficulty swallowing, esophageal pain, appetite and weight loss, near constant hacking cough and sleep loss
  • limitation of all significant physical activities because of difficulty breathing with greatly diminished lung capacity
  • grim fatal prognosis (as set forth in the testimony of plaintiff’s expert pulmonologist Albert Miller, M.D.) as the disease progresses into adjacent and distant tissues causing increasing symptoms of pain, shortness of breath, difficulty breathing,  need for larger and larger doses of narcotic pain medication, loss of appetite, weight and strength

Inside Information:

  • plaintiff’s exposure to asbestos at LILCO was for about two and a half years total
  • defendants did not challenge the excessiveness of the award for past pain and suffering
  • the parties did not request a jury charge concerning life expectancy and the verdict sheet did not include a period of years for the future pain and suffering element of damages
  • in his summation as to damages, plaintiff’s attorney suggested $5,000,000 for past pain and suffering plus $10,000,000 for the future

TWO OTHER MESOTHELIOMA CASES:

  1. Konstantin v. 630 Third Avenue Associates (Court of Appeals 2016) – $8,000,000 ($4,500,000 past – 33 months, $3,500,000 future – 18 months) reduced from $19,000,000 by the trial judge for a 55 year old man whose exposure to asbestos resulted from working with  joint sealing compounds at construction sites in 1976 and 1977.  In January 2010, he was diagnosed with mesothelioma of the tunica vaginalis, an asbestos-related cancer of the tissue lining the testicles. He endured five surgeries, including the removal of one testicle and his scrotum; two rounds of chemotherapy; and one round of broad-ranged radiation.  Six months after his diagnosis, the mesothelioma had spread to his pleura, the membrane lining his lungs. He suffered three years of extreme pain and swelling and died on June 6, 2012. The trial judge’s reduction was affirmed by the Appellate Division but the defendant appealed to the state’s highest court claiming it was prejudiced when it was compelled to try the case jointly with another mesothelioma case involving different parties. The Court of Appeals, though, affirmed the Appellate Division’s order.
  2. Dummitt v. A.W. Chesterton (1st Dept. 2014) – $8,000,000 ($5,500,000 past – 27 months, $2,500,000 future – six months) reduced from $32,000,000 by the trial judge for a 67 year old man whose exposure to asbestos came from maintaining valves in boiler rooms aboard U.S. Navy ships between 1960 and 1977. He began to experience symptoms of pleural effusion in 2009 and was diagnosed with pleural mesothelioma in April 2010. He endured four very painful thoracenesis procedures to relieve crushing pressure in his lungs, thoracic surgery, a complete lung collapse and three rounds of chemotherapy. This case was tried jointly with the Konstantin case discussed above and the trial judge’s reduction was affirmed in the same decision that affirmed the reduction in the Konstantin case. The defendant in this case, though, did not appeal further.