JOAN A. MADDEN, Judge.
Defendant Tishman Liquidating Corporation ("TLC ) moves pursuant to CPLR 4404 for an order setting aside the verdict entered against it on August 16, 2011, and directing that judgment be entered in its favor or, in the alternative, reducing the verdict. Plaintiff opposes the motion.
Plaintiff David Konstantin alleges that he was exposed to asbestos when he worked as a carpenter from 1975 to 1977, during new construction at 622 Third Avenue and the Olympic Towers, and that, as a result of this exposure, he developed mesothelioma of the tunica vaginalis. An entity known as Tishman Realty and Construction Co., Inc. ("Tishman Realty"), which is now defunct, was the general contractor at both sites. During the trial, this court found that TLC was the successor to Tishman Realty and therefore TLC was potentially liable for claims asserted against it based on Tishman Realty's actions.
The jury found that a joint compound used at the sites contained asbestos; that the asbestos was an unsafe product; that in the exercise of reasonable care TLC knew or should have known that the joint compound containing asbestos was being used at the sites; that Mr. Kostantin was exposed to asbestos at the sites; and that the exposure to asbestos was the cause of his injury. The jury further found that TLC exercised supervisory control over the drywall subcontractors using the asbestos containing joint compound; that TLC knew or should have known that its drywall subcontractors were using unsafe sanding methods with respect to the asbestos containing joint compound; that TLC failed to use reasonable care to prevent or correct the use of the asbestos containing joint compound, or to prevent and correct the unsafe sanding methods; and that these failures were a substantial factor in causing Mr. Konstantin's injury.
Moreover, as to the actions of TLC's employees, the jury also found that TLC created an unsafe condition by permitting its employees to sweep asbestos containing joint compound; that the failure to use reasonable care in sweeping was a substantial factor in causing Mr, Konstantin's injury; and that TLC acted with reckless disregard for the safety of Mr. Konstantin.
The jury awarded plaintiff $7 million for past pain and suffering; $12 million for future pain and suffering; $64,832 for past lost earnings; and $485,325 for future lost earnings, and apportioned 76% of the fault to TLC. Other entities on the verdict sheet, Georgia Pacific, Kaiser Gypsum and United States Gypsum, were found responsible based on evidence that they manufactured the joint compound containing asbestos during the relevant periods; the jury found that they were each 8% at fault.
TLC now moves to set aside the verdict on various grounds. CPLR 4404(a) provides that "the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial . . . where the verdict is contrary to the weight of evidence . . . [or] in the interest of justice," The standard for setting aside a verdict and entering judgment for the moving party as a matter of law is whether "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men [and women] to the conclusion reached by the jury on the basis of the evidence presented at trial. The criteria to be applied in making this assessment are essentially those required of a Trial Judge asked to direct a verdict."
The standard used in determining a motion to set aside a verdict as against the weight of evidence is "whether the evidence so preponderated in favor of [the moving party] that the verdict could not have been reached on any fair interpretation of the evidence "
I. TLC'S ENTITLEMENT TO A DIRECTED VERDICT AS TO LIABILITY
TLC argues that the court should have granted its motion for a directed verdict following the completion of plaintiffs' case as: (i) it was impossible for the jury to determine, as a matter of fact, that Mr. Konstantin was exposed to asbestos-containing joint compound from the work of subcontractors, citing
With respect to the first issue, it cannot said that there was no valid line of reasoning or permissible inferences supporting the jury's finding that the joint compound at the work site contained asbestos. At trial, Mr. Konstantin identified Georgia Pacific, Kaiser Gypsum and United States Gypsum as the makers of the joint compound at the two sites (T. at 836). He stated that these products came in five-gallon pails and were pre-mixed (T. at 684-86, 842). The 1990 Federal Register, which required manufacturers to report asbestos-containing products to the Environmental Protection Agency ("EPA") (
Contrary to TLC's position,
As for whether the jury rationally found that TLC knew that the joint compounds at the work sites contained asbestos, plaintiffs can establish TLC's liability by demonstrating either that TLC knew, or that it should have known, of the unsafe condition.
TLC also argues that there was no evidence from which the jury could have rationally inferred that it supervised and controlled either the drywall subcontractors sanding the joint compound containing asbestos, or its own employees who swept the joint compound containing asbestos. Labor Law § 200 is a codification of the common-law duty imposed on property owners, general contractors and employers to provide workers with a safe work site,
Here, while there may be an issue as to whether the evidence was such that the jury could rationally infer that TLC exercised sufficient supervision and control over the work of the drywall subcontractors so as to give rise to liability under Labor Law § 200, this issue is not dispositive as TLC was responsible for the creation of an unsafe condition by its own employees who swept the asbestos containing joint compound.
TLC's position that it is entitled to a directed verdict based on plaintiff's failure to proffer expert testimony as to site safety is unavailing. "The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror."
Additionally, the cases relied on by TLC are not to the contrary, as they simply provide examples of parties using expert evidence to support, or to defend against, Labor Law claims under circumstances that are factually distinct from the instant case.
II. TLC'S MOTION FOR A DIRECTED VERDICT BASED ON RELEASES
TLC argues that the court improperly proceeded with the trial without considering TLC's motion for a directed verdict based on plaintiffs' settlement with the building owners which released not only the owners but also their agents. TLC asserts that since its predecessor was an agent of the owners, the releases likewise apply to TLC and relieve TLC of any liability.
This argument is without merit. First, TLC cannot show any prejudice resulting from the court's reserving decision on its motion. Furthermore, as plaintiff notes, the issue of the releases was not raised prior to trial and thus the redacted releases were not produced to the court until the trial was well under way. In any event, the releases would not have provided a basis for directed a verdict in TLC's favor, as they do not express a clear intent to release TLC or its predecessor.
General Obligations Law § 15-108(a) states in relevant part that "[w]hen a release. . . is given to one of two or more persons liable or claimed to be liable in tort for the same injury . . . it does not discharge any of the other tortfeasors from liability for the injury. . . unless its terms expressly so provide." The purpose of the statute is "to eliminate the inequities existent under the common-law rule where a general release given to one wrongdoer discharged all others."
In this case, the releases did not name TLC's predecessor as a discharged party and it cannot be said that the term "agent" expressed a clear intent to release the general contractor at the sites, particularly since under these circumstances, an agent could refer to any number of entities. Furthermore, if the releases were intended to apply to the general contractor, they could have referred to the general contractor by name or otherwise indicated such an intent.
III. ISSUES REGARDING BASES FOR OPINIONS OF PLAINTIFF'S MEDICAL EXPERTS
TLC first argues that the court erred in denying its motion for a Frye hearing which TLC made prior to jury selection and renewed prior to the testimony of plaintiff's two medical experts, Dr. Markowitz and Dr. James Strauchen.
New York courts apply the standard established by
When, as here, the issue concerns a causal connection, plaintiff's expert must set forth scientific evidence based on generally accepted principles showing such a causal link.
As stated in the court's decision on the record, "a
Here, TLC based its motion for a
The court reserved decision, however, on whether there was a proper foundation for the opinions of plaintiff's medical experts that Mr. Konstantln's mesothelioma of the tunica vaginalis was caused by asbestos exposure. Following the trial, the parties were directed to submit post-trial briefs regarding this issue.
An opinion on causation "should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)."
Under this standard, plaintiff established legally sufficient evidence of causation. As a preliminary matter, it must noted that the "link between asbestos and disease is well documented,"
However, TLC argues that plaintiffs failed to prove general causation, that is, that asbestos exposure can cause mesothelioma of the tunica vaginalis. Asserting that it has not been shown that asbestos fibers migrate from the lung to the tunica vaginalis, TLC relies on the opinion of their own expert Dr. Michael Sirosky, a urologist, who testified that there is no pathway for asbestos to get into the tunica vaginalis unless it occurs in utero or there is a hernia (T. at 65-66).
TLC's position is unavailing in light of the foundational evidence in the record supporting causation. First, in support of his opinion that Mr. Konstantin's exposure to asbestos caused him to develop mesothelioma of the tunica vaginalis, Dr. Markowitz cited a case study published in 1998 showing that 30 to 40 percent of the cases of malignant mesothelioma of the tunica vaginalis reported a history of asbestos exposure. Significantly, Dr. Markowitz also testified to a 2010 epidemiological study by Marinaccio in Italy where occupational histories were taken, and in 65% of the cases of malignant mesothelioma of tunica vaginalis reported prior exposure to asbestos (T. at 1026-1028). Dr. Markowitz stated that "it's a combination of knowing that it is a malignant mesothelioma of the tunica vaginalis, is the signal for cancer, wherever it occurs, for asbestos exposure and then specifically the studies of people with this particular rare type of cancer have shown the same thing" (T. at 1028).
Dr. Markowitz also reviewed Mr. Konstantin's medical records and the pathology reports of Dr. Strauchen. He noted that in the tunica vaginalis there is "mesothelial tissue just like around the heart, just like around the lungs and around the abdomen"
Furthermore, there was sufficient evidence to provide a foundation for the theory that asbestos fibers migrate throughout the body from the lungs. Dr. Maskowitz testified that asbestos fibers travel through the blood stream (T at 1025), as did Dr. Moline (T at 424, 425).
Dr. Strauchen also opined that mesothelioma of the tunica vaginalis was caused by asbestos exposure.
Based upon the foregoing, there was an adequate foundation for the conclusion of plaintiff's experts that his mesothelioma of the tunica vaginalis was caused by asbestos exposure.
IV. VIDEO DEMONSTRATION OF WORK PRACTICES
TLC argues that the video demonstration of work practices, which was shown twice during trial, should have been excluded as it was highly prejudicial and did not accurately depict the conditions under which Mr. Konstantin was working, and that showing the video a second time while plaintiff's liability expert Mr. Hatfield testified resulted in further prejudice to TLC. These arguments are without merit.
First, as noted by plaintiff, TLC observed the video tape during Mr. Konstantin's deposition, which was held a year before trial, and at his deposition, Mr. Konstantin testified that the methods of workers using the joint compound shown in the video were substantially similar or identical to the methods used by the drywall subcontractors at the sites in issue. Furthermore, I provided a limiting instruction to the jury indicating that the video simulation did not represent the exact conditions of the work sites but only similar activities (T. at 690-691). Moreover, `"testimony concerning the demonstration ] was subject to cross-examination and subsequent expert rebuttal testimony, both of which criticized the demonstration ] and minimized [its] significance' as well as the methodology of the expert who prepared the videotape."
Finally, the fact that the video was played first during Mr. Konstantin's testimony for foundational purposes and a second time in connection with Mr. Hatfield's testimony so Mr. Hatfield could explain his methodology and results, was not prejudicial, and to the extent there was any prejudice, it was not sufficient to have deprived TLC of a fair trial.
V. ADDITIONAL ISSUES REGARDING PLAINTIFF'S EXPERTS
TLC argues that it was prejudiced by plaintiff's failure to promptly exchange Mr. Hatfield's reliance materials, i.e. reports and studies that Mr. Hatfield was relying on at the time of trial. This argument is without merit as Mr. Hatfield did not generate any reports or studies in this case and there is no requirement that he create a report.
TLC also argues that the court should not have admitted Dr. Strauchen's testimony regarding Mr, Konstantin's pleural plaques and that it was prejudiced by Dr. Strauchen's supplemental expert report, which was served after the trial commenced. TLC asserts that the supplemental report was prejudicial as it changed the theory of plaintiff's medical case by adding the allegation that Mr. Konstantin had a pleural thickening which was a marker for asbestos exposure. This argument is unavailing. The court properly ruled that the belated production was admissible and not prejudicial to TLC's defense and mitigated any prejudice by offering TLC an opportunity to offer a rebuttal witness. Notably, TLC's own expert, Dr. Sirosky indicated in his expert report that Mr. Konstantin's CT scan showed a pleural plaque. In addition, Mr. Konstantin was alive at the time of trial and his disease was progressing, and Dr. Strauchen's supplemental report detailed the progression of the disease, including how Mr. Konstantin's mesothelioma had metastasized. In any event, the supplemental report did not change the theory of plaintiff's case but, rather provided further substantiation for his position that his mesothelioma was caused by asbestos exposure.
TLC argues that no rational jury could find that it acted in a reckless manner and therefore the court erred in charging "recklessness" as requested by plaintiff. TLC also argues that the recklessness charge prejudiced the jury in rendering the award and was tantamount to a punitive damages award.
As to the standard to be applied where reckless conduct is alleged, the Court of Appeals has "adopted a gross negligence standard, requiring that `the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome."
Here, the evidence showed the following: Mr. Konstantin worked at two construction sites from 1975 to 1977 where TLC's predecessor was the general contractor; joint compounds containing asbestos were used at the sites; and the joint compounds were sanded and then swept up causing dust from the compounds to become air bourne in the areas where Mr. Konstantin was working. There was also evidence of TLC's access to information regarding the dangers of asbestos before Mr. Konstatin's exposure from 1975 to 1977, including a 1969 letter from James Endler, Tishman Realty's head of construction, indicating that it was aware of the dangerous of asbestos fibers (TLC's motion, Exh. L) and testimony that TLC had access to the AMSE journals dating back to the 1930's (T. at 2659-64). Moreover, as noted earlier, Mr. DeBenedettis, the project site superintendent for Tishman Realty during the relevant period, testified that plasters containing asbestos were generally used at work sites by subcontractors employed by TLC's predecessor (T 2011-2012), and that there was a general awareness throughout the construction industry in the 1970's and at TLC, of the dangers of asbestos and that such an awareness was primarily through information published in technical trade journals (T 2011-2013). In addition, there was evidence that in 1974, OSHA published an alert to the construction industry warning of the dangers of asbestos.
Giving plaintiffs the benefit of all favorable inferences, this evidence supports an inference that TLC knew as early as the 1930's, and certainly in the late 1960's and early 1970's, before Mr. Konstatin's exposure in 1975-1977, of the dangers of asbestos generally, and that asbestos was used in joint compounds. This knowledge and TLC's failure to take steps to protect workers, like Mr. Konstatin, from asbestos dust from these joint compounds, establish sufficient evidence from which a jury could infer that in failing to protect Mr. Konstatin, TLC acted intentionally concerning a known risk with conscious indifference as to harm that was highly probable.
Finally, nothing in the record suggests that the recklessness charge had an impact on the amount of pain and suffering awarded by the jury.
VII. TLC'S OBJECTIONS TO CERTAIN DOCUMENTS IN EVIDENCE
TLC asserts that the court erred in permitting plaintiff to introduce the following documents into evidence over TLC's objections: 1) the 1969 James Ender letter; 2) a 1972 Tishman Annual Report; 3) a 1974 Tishman Annual Report; 4) 1973 Press Release regarding Olympic Towers; 5) the 1990 Federal Register regarding asbestos products; and 6) progress photos of Olympic Towers. TLC also objects to the admission of certain materials generated by the American Society of Mechanical Engineers ("ASME"), such as membership lists and articles published in its Journal of Engineering.
Contrary to TLC's position, these documents were properly admitted. With respect to the 1969 Ender letter, while, as TLC asserts, the letter concerned the World Trade Center and asbestos containing fireproofing material and asbestos in joint compounds, it was properly admitted as evidence of TLC's actual knowledge that asbestos dust posed a danger at construction sites prior to Mr. Konstantin's exposure. In addition, the jury was provided with a limiting instruction that such evidence was only being offered as to the issue of knowledge of the dangers and that there were no allegations regarding fireproofing exposure in Mr. Konstantin's case (T. 2631-32).
As for the Tishman Annual Reports, which TLC argues are irrelevant as they make no reference to exposure to joint compounds at the relevant sites, these documents were admitted to show that TLC was the general contractor at the sites and the jury was given a limiting instruction clarifying the purpose of admitting these documents (T. 2635). Next, while the 1973 Press Release from Olympic Towers references fireproofing and not joint compounds or the trades at issue in this case, as plaintiff points out, the Press Release is probative of whether TLC's predecessor exercised supervision and control over the work site for the purposes of Labor Law § 200.
With respect to the 1990 Federal Register regarding asbestos products, TLC asserts that it is without probative value as it does not establish that asbestos containing joint compounds were at the sites during the relevant period. TLC also notes that the register does not mention that asbestos-free products were available. Contrary to TLC's position, the document was properly admitted as evidence that the brands of joint compounds identified by Mr. Konstantin as being at the sites, were asbestos containing during the period of his exposure. Next, the progress photos were properly admitted as evidence that TLC was the general contractor at the sites.
The ASME documents were also properly admitted, even though they pre-dated TLC's membership in ASME, since, as previously found, the jury could infer from the record that TLC learned about the information regarding the dangers of asbestos from the materials generated by ASME, including trade journals. In this regard, the jury was given a limiting instruction noting that the articles pre-dated TLC's membership (T. at 2651-52).
VIII. ISSUES REGARDING NON-PARTY TORTFEASORS
TLC argues that various errors made by the court regarding non-party tortfeasors warrant a new trial. First, TLC argues that the court erred in not including Bendix on the verdict sheet based on Mr. Konstatin's testimony that he worked with Bendix brakes as a teenager and that he observed dust from the linings while sanding them, and the testimony from plaintiffs' expert Dr. Markowitz that the brake work performed by Mr. Konstatin was one of the risks that contributed to his injury (T. 1054). However, at trial, there was no evidence that the Bendix brake pads that Mr. Konstatin worked with contained asbestos, and thus Dr. Markovitz's opinion lacked a factual foundation.
TLC also argues that the court improperly instructed the jury regarding the burden of proof as to the Article 16 non-party tortfeasors. TLC asserts that under CPLR 1603, defendant only has the burden of proving, by the preponderance of the evidence, its equitable share of total liability. However, as noted by plaintiff, this issue is moot since the jury apportioned liability to the three non-party companies listed on the verdict sheet. In any event, the court's charge was proper since a defendant seeking to apportion liability to non-party companies must establish that the negligence of those companies "was a significant cause of plaintiffs injuries," and the "proper amount of the equitable shares attributable to the other companies."
TLC moves for a new trial on the grounds that consolidation of this case with the
As explained in the decision on the record, historically, in New York County, asbestos cases have been consolidated for trial. The consolidation decision details the courts consideration of the factors delineated in
The fact that the two cases involved different legal theories is not a basis for a finding that any substantial right of TLC's has been prejudiced.
X. PLAINTIFF'S OPENING AND SUMMATION AS GROUNDS FOR A NEW TRIAL
TLC argues that plaintiff's improper opening remarks which TLC alleges included statements that TLC "failed to warn" even though such a failure was not an issue at trial, that TLC allegedly was liable for knowledge of "an unrelated Tishman entity" and that TLC "had knowledge" of asbestos via its alleged predecessor, are grounds for a new trial.
TLC's position is unavailing. First, while plaintiff's opening addressed TLC's failure to test for workplace exposure to asbestos and its failure to erect safety signs (T. at 174-178), plaintiff did not assert that TLC had a duty to warn Mr. Konstantin, or that TLC was liable for a failure to warn. Moreover, as to TLC's arguments regarding TLC's knowledge based on that of its predecessor, Tishman Realty, the general contractor on the site, the court ruled that TLC was subject to successor liability as it was formerly known as Tishman Realty, and that, in any event, TLC was "judicially estopped from denying that it was formerly known as Tishman Realty based on its own admissions in the Public Service Mutual Insurance complaint, and its responses to Weitz & Luxemberg [CAL] litigation," in which TLC admits it was previously known as Tishman Realty. (T 1861-1864). Accordingly, plaintiff's opening remarks regarding TLC's knowledge based on that of Tishman Realty were not inappropriate.
TLC next argues that it is entitled to a mistrial based on the statements in plaintiff's summation which according to TLC, allegedly insinuated that TLC had intentionally hidden or destroyed documents, and instructed the jury to award plaintiff $20 million. This argument is without merit. First, any comments by plaintiff's counsel as to a lack of a construction file at the work site constitute fair comment and, in any event, were not so egregious as to deprive TLC of a fair trial.
Thus, the remarks by plaintiff's counsel during opening and summation do not provide a basis for a new trial.
XI. AGAINST THE WEIGHT OF EVIDENCE
TLC argues that the jury verdict was against the weight of evidence as plaintiff's proofs failed to: 1) identify the asbestos containing product that allegedly caused Mr. Konstantin's injury; 2) show that TLC owed Mr. Konstanin any duty that was breached such that liability could be found under the Labor Law; and 3) prove that Mr. Konstantin's alleged exposure to asbestos was a proximate cause of his mesothelioma. TLC also argues that the jury's finding of 76% liability against TLC was irrational and against the weight of the evidence since TLC did not manufacture, sell or distribute the asbestos containing joint compounds.
These arguments are unavailing. As indicated above, the standard used in determining a motion to set aside a verdict as against the weight of evidence is "whether the evidence so preponderated in favor of [the moving party] that the verdict could not have been reached on any fair interpretation of the evidence."
Moreover, with respect to the breach of that duty, evidence in the record establishing that the employees of TLC's predecessor directed workers to take various safety measures, provided a rational basis for the jury's finding that TLC supervised and controlled the work of various subcontractors so as to give rise to liability under Labor Law § 200. In any event, even if it could be argued that a fair interpretation of the evidence did not provide a basis for finding that TLC supervised and controlled the work of the drywall subcontractors, evidence in the record established that TLC's own employees created the dangerous condition through sweeping asbestos containing dust from the joint compounds and thus provides a rational basis supporting the jury's finding of liability under Labor Law § 200.
Next, the testimony of Dr. Markowitz and Dr. Strauchen provided a sufficient evidentiary basis for the jury's finding that asbestos caused Mr. Konstantin's injury. The conflicting testimony of TLC's expert, Dr. Sirosky, is not a ground for concluding that the jury's verdict was against the weight of evidence.
With respect to the apportionment of liability, the jury's finding that TLC was 76% at fault was based on a fair interpretation of the evidence which included proof that TLC was present at the work site, knew that the joint compounds contained asbestos, knew that asbestos dust posed a danger at construction sites, and failed to provide safety measures to protect Mr. Konstantin from being exposed asbestos. Thus, the apportionment of liability was not against the weight of evidence.
XII. CUMULATIVE ERRORS
TLC argues that the cumulative effect of the court's errors require a new trial, and in particular, its rulings with respect to Dr. Sirosky's testimony and Mr, Konstantin's testimony regarding TLC's role as general contractor at the sites. Contrary to TLC's position, the court properly ruled on the objections to Dr. Sirosky's testimony on cross examination and on redirect as well as with respect to Mr. Konstantin's testimony, which was based on his personal observations of the actions of TLC's predecessor at the work site and thus did not call for expert testimony.
The jury awarded Mr. Konstantin $7 million for past pain and suffering; $12 million for future pain and suffering for an estimated one and half years; $64,832 for past lost earnings; and $485,325 for future lost earnings.
The amount of damages to be awarded for personal injuries is primarily a question for the jury, however, an award may be set aside "as excessive or inadequate if it deviates materially from what would be reasonable compensation." CPLR 5501 (c);
Recent decisions which address the issue of the amount of damages where plaintiffs suffered from mesothelioma have sustained awards of $3.5 million,
While awards in comparable cases are a factor to be considered, as noted above, such awards are not binding, since a precise comparison of injuries is not possible. Here, Mr. Konstatin suffered from a hydrocele on his testicle, which enlarged to the size of an apple. While awaiting surgery to remove the hydrocele, he experienced pain and soreness from movement and twice had fluid drained from the hydrocele. After surgery which removed the hydrocele Mr. Konstantin continued to experience pain in his groin. Subsequent surgery was performed to remove to nodules on his testicles after which he was diagnosed with mesothelioma at age 53. Mr. Konstantin underwent another surgery which removed his left testicle and half of his left scrotum. Mr, Konstantin testified that he experienced pain, needed medications for pain and depression and was unable to work.
In addition to the three surgeries, Mr. Konstatin had six weeks of radiation and two courses of chemotherapy. Mr. Konstantin further testified that the radiation treatments burned his back and affected his throat and intestines and the chemotherapy treatment caused nausea, confusion, groin pain and shortness of breath, Mr. Konstantin also testified he was no longer able to engage in sexual activity, received injections of anesthesia in his groin and took narcotic drugs for breakthrough pain which resulted in constipation and confusion. Mr. Konstantin's further medical treatment included procedures to drain fluid from his lungs and to obtain a biopsy, procedures in connection with a disease-related hernia and to remedy scarring from his previous surgeries, and a second course of chemotherapy.
As a result of the disease and treatment, Mr. Konstantin testified that he slept most of the day, was unable to work, needed a cane to walk, and was unable to participate in activities he previously enjoyed including community events, various sports, and playing drums in a band in which he was a member.
Evidence indicates that as the disease progresses, the cancer will spread to his groin, lymph nodes, and chest. He will lose weight and muscle mass and will be unable to fight infection and will be debilitated and eventually pass away from the disease in one to two years. At the time of trial, Mr. Konstatin had experienced 33 months of pain and suffering, and the jury estimated that he would experience 18 months of future pain and suffering.
The evidence here thus differs from the cases relied on by TLC as to the information regarding treatment, duration and extent of pain and suffering available from the record. Thus, for example, Mr. Pride, unlike Mr. Konstantin, had no treatment for a year prior to trial, only one thoracentises and tolerated chemotherapy well. In contrast, Mr. Konstantin had extensive treatment for three years before trial including three surgeries and various procedures, resulting in the removal of a testicle and part of his scrotum, radiation and two courses of chemotherapy. As to Mr. Pride and Mr. Mayer, the jury's awards were based on past and future pain and suffering for a total of 11 months and 25 months respectively, a significant difference from the award from Mr. Konstantin which is based on a total of 51 months. In addition, the awards in the two lung cancer cases were based on pain and suffering for periods of time less than Mr. Konstantin's 51 months; two years duration in
Taking in consideration the amount of the following awards, recognizing that awards for pain and suffering are not subject to precise mathematical quantification, and giving the jury's verdict great deference, I conclude that based on the nature, extent and duration of Mr. Konstantin's injuries, the awards of $7 million for past pain and suffering and $12 million for future pain and suffering deviate materially from what would be reasonable compensation, Pursuant to CPLR 5501(c), the awards of past and future pain and suffering are vacated and a new trial ordered on the issue of damages unless plaintiff within 30 days of service of a copy of this decision and order with notice of entry stipulates to reduce the awards to $4.5 million for past pain and suffering and $3.5 million for future pain and suffering.
Next, the court finds that the jury's award of economic damages in the amount of $64,832 for past lost earnings and $485,325 for future lost earnings was not excessive. While business was down prior to Mr. Konstantin's diagnosis, the evidence showed that his business was primarily suffering due to his inability to contribute to the business and that his years of experience as a general contractor and his leadership were central to the success of his business. Notably, the jury awarded less in economic damages than calculated by plaintiff's expert economist.
Accordingly, it is
ORDERED that the motion by defendant Tishman Liquidating Corporation for a judgment notwithstanding the verdict is denied; and it is further
ORDERED that the motion by defendant Tishman Liquidating Corporation to set aside the verdict is granted to the extent of vacating the awards of $7 million for past pain and suffering and $12 million for future pain and suffering, and ordering a new trial on the issue of damages unless plaintiff within 30 days of service of a copy of this decision and order with notice of entry stipulates to reduce the awards to $4.5 million for past pain and suffering and $3.5 million for future pain and suffering; and it is further
ORDERED that the balance of the motion by defendant Tishman Liquidating Corporation is denied.