How Recent Remittitur Decisions Affect an Asbestos Defendant’s Damages Analysis in New York Litigation.

Although a jury’s verdict is given deference upon appellate review, a jury award can be set aside as "excessive or inadequate if it deviates materially from what would be reasonable compensation."[1]  While non-economic damages for pain and suffering “are subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification”[2], in several recent decisions, the New York Appellate Division, First Department provided guidance as to how appellate courts may treat remitted verdicts in asbestos cases moving forward.  New York City is in the First Department where the majority of the state’s asbestos cases are venued.

The plaintiff in Peraica worked with asbestos insulation heavily promoted by a boiler manufacturer to use in connection with their products.[3]  Upon conclusion of the trial, the jury awarded the Plaintiff's estate $35 million dollars for seventeen months of past pain and suffering from his mesothelioma. The trial judge subsequently remitted the award to $18 million dollars before appeal. The Appellate Division, First Department further reduced the jury’s award to $4.25 million dollars. 

The matters of Sweberg and Hackshaw were consolidated prior to trial.  The jury put forth a $10 million dollar award for Plaintiff Hackshaw’s twelve month past pain and suffering period[4] as well as an award of $5 million dollars for Plaintiff Sweberg’s twenty-four month period of past pain and suffering.[5]  In addition, the jury awarded Plaintiff Sweberg $10 million dollars for future pain and suffering over a period of one and a half years. The trial court reduced Plaintiff Hackshaw’s award to $6 million dollars, which was also further reduced to $3 million dollars on appeal.  While the trial judge kept Plaintiff’s Sweberg’s $5 million dollar award for past pain and suffering intact, the trial judge vacated the award for future pain and suffering and ordered a new trial on the issue of damages unless he agreed to reduce that award to $5 million.  These awards were further reduced to a combined $9.5 million dollar award ($5 million past pain and suffering and $4.5 million future pain and suffering) on appeal. 

The Appellate Division, First Department did not formally state that a strict formula exists for a monthly valuation of pain and suffering, however, when computing the value of the remitted awards after appeal over the time specified by the trial courts for past and future pain and suffering in these cases, a pattern in remitted awards of approximately $250,000 per month emerges.  This pattern is instructive as appellate courts use comparable cases to decide whether a pain and suffering award deviates materially from the reasonable compensation standard. Even though juries continue to routinely award significantly higher than that sum, as a result of the remittitur in the appellate decisions, it may be that this $250,000 per month formulation should be a factor to be considered when evaluating the cases for settlement.

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