Court: Supreme Court of the State of New York, District of New York
In that asbestos lawsuit, Munir Seen alleged that he developed mesothelioma from exposure to asbestos through various products, including a joint compound of defendant Kaiser. The plaintiff’s experts included Dr. Jacqueline Moline and David Rosner. In June 2022, a jury awarded the plaintiff $15 million and assigned Kaiser 70 percent blame. After the trial, Kaiser requested three forms of post-trial exoneration. Ultimately, the court rejected Kaiser’s applications in their entirety.
Kaiser initially sought judgment notwithstanding the motion for judgment, contending that “plaintiff’s expert evidence in court . . . was defective and legally insufficient,” according to the Court of Appeals’ decision in Nemeth v. Brenntag NA, Inc. However, the court found “material differences” between this matter and Nemeth.
In Nemeth, the experts used a glove box simulation to estimate exposure to cosmetic talc in the plaintiff’s home. In this matter, the plaintiff’s expert compared the deceased’s testimony with historical industrial hygiene data, measurements from studies of real-life monitoring of individuals performing drywall work, and the report by industrial hygienist Steven Paskal, which provided “numerical exposure estimates for the deceased’s joint compound work.” . The court stated that “the plaintiff then established, through his experts, that the deceased’s exposure to Kaiser’s joint was sufficient to have caused his mesothelioma.” Therefore, the court found that there was sufficient factual basis for finding the A jury ruled that exposure to Kaiser’s product was a factor in the deceased developing mesothelioma.
In addition, Kaiser made three separate arguments for a new trial. First, Kaiser alleged that the court wrongly allowed the de bene esse examination of the deceased, which had been conducted prior to Kaiser’s involvement in the lawsuit. However, the court found that Kaiser had deposed the deceased, but also chose to forego his own videotaped deposition. As such, “[i]Given the opportunity to cross-examine the deceased before his death, Kaiser has not shown that he was disadvantaged by the court’s admission of the de bene esse testimony.” Furthermore, the court rejected Kaiser’s claim that it was biased for preventing Kaiser from sending Dr. To consult Moline for her opinions on other companies identified in her report, as this decision was consistent with the In re New York City Asbetos Litig. (idle). The court stated that “”[a]By the time she had finished testifying, Kaiser had not established a basis to prove the elements necessary to assign blame to these other companies.” Third, the court found that the plaintiff’s expert testimony “showed that the plaintiff would bring evidence of talc as a source of asbestos on Kaiser’s common property.”
Most recently, Kaiser requested the rejection of a clearly inflated premium under CPLR 5501(c). The court found that “[t]The standard to be used is whether the premium differs materially from what would be fair compensation.” In support of his claim, Kaiser filed several cases in which courts limited the damages to a monthly amount of $242,857 (In re New York City Asbetos Litig . (Peraica)) and $266,667 (In re New York City Asbetos Litig. (Macaluso)). ), respectively. However, the court noted that there are also several cases in which larger claims for damages were made, including $300,000 (In re New York City Asbetos Litig. (McCarthy)), $333,000 (In re New York City Asbetos Litig. (Koczur)) and $1 million (regarding New York City Asbet Litig. (Koczur)). In this matter, the jury award is approximately $348,847. In this respect, the court saw no basis for remittal, since the verdict of the jury is within the scope of earlier verdicts. The court thus rejected Kaiser’s application in its entirety.
Read the full decision here.
