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Men’s cancer stemmed from exposure to asbestos, suit alleged

Amount:

$190,000,000

Type:

Verdict-Plaintiff

State:

New York

Venue:

New York County

Court:

New York Supreme

Injury Type(s):

other-death other-radiation therapy cancer-lung cancer-chemotherapy cancer-mesothelioma

Case Type:

Products Liability – Asbestos, Failure to Warn

Case Name:

Santo Assenzio, & Annatolia Assenzio v. A.O. Smith Water Products, Co. / Robert Brunck v. A.O. Smith Water Products, Co., No. 190026/12 / Cesar O. Serna v. A.O. Smith Water Products Co, American Biltrite, Inc, Azrock Industries,, Burnham, LLC,, Crane Co.,, Empire-Ace Insulation Mfg. Corp, Gen, No. 190183/12 / Raymond C. Vincent v. A.O. Smith Water Products Co, Bell & Gossett Company, Burnham, LLC,, CBS Corporation, f/k/a Viacom Inc.,, Cleaver Brooks Company, Inc, Cr, No. 190184/12 / Paul Levy v. A.O. Smith Water Products Co, Air & Liquid Systems Corporation,, Atwood & Morrill Company, Aurora Pump Company, Bell & Gossett Company, B, No. 190200/12,
No. 190008/12

Date:

July 23, 2013

Parties

Plaintiff(s):

Paul Levy (Male), 

Roslyn Levy (Female), 

Cesar O. Serna (Male), 

Annatolia Assenzio (Female), 

Estate of Robert Brunck (Male, 73 Years), 

Estate of Santo Assenzio (Male, 82 Years), 

Estate of Raymond Vincent (Male)

Plaintiff Attorney(s):

Adam R. Cooper;
Weitz & Luxenberg, P.C.;
New York,
NY,
for
Paul Levy, Roslyn Levy, Cesar O. Serna, Annatolia Assenzio, Estate of Robert Brunck, Estate of Santo Assenzio, Estate of Raymond Vincent ■ Danny R. Kraft Jr.;
Weitz & Luxenberg, P.C.;
New York,
NY,
for
Paul Levy, Roslyn Levy, Cesar O. Serna, Annatolia Assenzio, Estate of Robert Brunck, Estate of Santo Assenzio, Estate of Raymond Vincent ■ Kyle A. Shamberg;
Weitz & Luxenberg, PC;
New York,
NY,
for
Paul Levy, Roslyn Levy, Cesar O. Serna, Annatolia Assenzio, Estate of Robert Brunck, Estate of Santo Assenzio, Estate of Raymond Vincent ■ Daniel M. Blouin;
Weitz & Luxenberg, P.C.;
New York,
NY,
for
Paul Levy, Roslyn Levy, Cesar O. Serna, Annatolia Assenzio, Estate of Robert Brunck, Estate of Santo Assenzio, Estate of Raymond Vincent ■ Daniel Horner;
Weitz & Luxenberg, P.C.;
New York,
NY,
for
Paul Levy, Roslyn Levy, Cesar O. Serna, Annatolia Assenzio, Estate of Robert Brunck, Estate of Santo Assenzio, Estate of Raymond Vincent

Plaintiff Expert(s):

Neil Schachter;
M.D.;
Pulmonology;
New York,
NY called by
Adam R. Cooper, Danny R. Kraft Jr., Kyle A. Shamberg, Daniel M. Blouin, Daniel Horner ■ David Rosner;
Ph.D.;
Paints/Coatings;
New York,
NY called by
Adam R. Cooper, Danny R. Kraft Jr., Kyle A. Shamberg, Daniel M. Blouin, Daniel Horner ■ David Schwartz;
M.D.;
Pathology;
Atlanta,
GA called by
Adam R. Cooper, Danny R. Kraft Jr., Kyle A. Shamberg, Daniel M. Blouin, Daniel Horner ■ James Strauchen;
M.D.;
Pathology;
New York,
NY called by
Adam R. Cooper, Danny R. Kraft Jr., Kyle A. Shamberg, Daniel M. Blouin, Daniel Horner ■ Nathan Rothman;
;
Pulmonology;
Baldwin,
NY called by
Adam R. Cooper, Danny R. Kraft Jr., Kyle A. Shamberg, Daniel M. Blouin, Daniel Horner ■ Steven Markowitz;
M.D.;
Environmental Sciences;
New York,
NY called by
Adam R. Cooper, Danny R. Kraft Jr., Kyle A. Shamberg, Daniel M. Blouin, Daniel Horner

Defendant(s):

CBS Corp., 

Crane Co., 

Burnham, LLC, 

Burnham Corp., 

Cleaver-Brooks, 

Aurora Pump Co., 

Azrock Industries, 

Bell & Gossett Co., 

Atwood & Morrill Co, 

American Biltrite Inc., 

Air & Liquid Systems Inc., 

Empire Ace Insulation Manufacturing Corp.

Defense Attorney(s):

Elizabeth O’Neill;
Hawkins Parnell Thackston & Young LLP;
Atlanta,
GA,
for
Cleaver-Brooks ■ John Fanning;
Cullen and Dykman LLP;
New York,
NY,
for
Burnham, LLC, Burnham Corp. ■ Thomas Radcliffe;
DeHay & Elliston, L.L.P.;
Baltimore,
MD,
for
Burnham, LLC, Burnham Corp. ■ Suzanne M. Halbardier;
Barry, McTiernan & Moore, LLC;
New York,
NY,
for
Cleaver-Brooks ■ None reported;
;
for
CBS Corp., Crane Co., Aurora Pump Co., Azrock Industries, Bell & Gossett Co., Atwood & Morrill Co, American Biltrite Inc., Air & Liquid Systems Inc., Empire Ace Insulation Manufacturing Corp. ■ Shawnette A. Fluitt;
Barry, McTiernan & Moore, LLC;
New York,
NY,
for
Cleaver-Brooks ■ Joseph Angiolillo;
Cullen and Dykman LLP;
New York,
NY,
for
Burnham, LLC, Burnham Corp.

Defendent Expert(s):

Sheldon Rabinovitz;
Industrial Hygiene;
Washington,
DC called by
Elizabeth O’Neill, John Fanning, Thomas Radcliffe, Suzanne M. Halbardier, Shawnette A. Fluitt, Joseph Angiolillo ■ Benjamin Safirstein;
Pulmonology;
Montclair,
NJ called by
Elizabeth O’Neill, John Fanning, Thomas Radcliffe, Suzanne M. Halbardier, Shawnette A. Fluitt, Joseph Angiolillo

Facts:

In February 2011, plaintiff Cesar Serna learned that he was suffering mesothelioma, which is an aggressive, incurable cancer that often stems from exposure to asbestos. During his career, Serna, a laborer, handled and demolished boilers whose components contained asbestos. He claimed that the boilers’ manufacturers included Burnam Corp., which is a subsidiary of Lancaster, Pa.-based Burnham Holdings Inc. Serna further claimed that his mesothelioma was a result of his inhalation of fibers of asbestos that was contained in the boilers’ components. In September 2011, plaintiff’s decedent Raymond Vincent learned that he was suffering mesothelioma. During his career, Vincent, a steamfitter, handled boilers whose components contained asbestos. Vincent claimed that the boilers and/or their components were manufactured by companies that included Burnam Corp. and/or Thomasville, Ga.-based Cleaver-Brooks. He further claimed that his mesothelioma was a result of his inhalation of fibers of asbestos that was contained in the boilers’ components. In November 2011, plaintiff Paul Levy learned that he was suffering cancer of a lung. During a period that spanned 1951 and 1966, Levy, a pipe fitter, worked at New York’s Brooklyn Navy Yard. His tasks included the handling of the pipes of distillers that processed saltwater. He claimed that his cancer was a result of his inhalation of fibers of asbestos that was contained in the pipes’ insulation. He further claimed that the insulation’s manufacturers included Cleaver-Brooks. In December 2011, plaintiff’s decedent Santo Assenzio, 82, learned that he was suffering cancer of a lung. During a period that spanned 1946 and 1986, Assenzio, a plumber, handled pipes whose insulation contained asbestos. He claimed that his cancer was a result of his inhalation of fibers of the insulation’s asbestos. He further claimed that the insulation’s manufacturers included Cleaver-Brooks. In January 2012, plaintiff’s decedent Robert Brunck, 73, learned that he was suffering mesothelioma. During his career, Brunck, a plumber, handled boilers and pipes whose insulation contained asbestos. He claimed that the boilers’ manufacturers included Burnam Corp., that the insulation’s manufacturers included Cleaver-Brooks and that his mesothelioma was a result of his inhalation of fibers of the insulation’s asbestos. Assenzio, Brunck, Levy, Serna and Vincent sued Burnam Corp., an affiliated corporation, Burnham LLC, Cleaver-Brooks, and many other companies that were believed to have manufactured and/or distributed products that contained asbestos. The plaintiffs alleged that the defendants failed to provide warnings that disclosed the dangers that could have stemmed from exposure to their products’ asbestos. The cases were consolidated. Assenzio, Brunck and Vincent died after the suits had been filed. Their claims were continued by their respective estates. Several defendants were dismissed; plaintiffs’ counsel discontinued the claims against others; and other defendants negotiated settlements. The matter ultimately proceeded to a trial against Burnham Corp. and Cleaver-Brooks. Plaintiffs’ counsel claimed that the defendants’ executives and managers knew that their respective companies manufactured products that contained asbestos. Plaintiffs’ counsel noted that the companies distributed literature that acknowledged that they manufactured products that contained asbestos. Plaintiffs’ counsel further claimed that the executives and managers should have known that asbestos’s fibers could not be safely inhaled. They claimed that asbestos’s dangers have been widely publicized since the 1930s, and they contended that the defendants’ products’ packages should have displayed warnings that disclosed the dangers that could have stemmed from exposure to asbestos. The jury heard testimony by representatives of Burnham and Cleaver-Brooks. The witnesses acknowledged that the companies specified use of products that contained asbestos, that the companies did not conduct tests that measured the products’ release of asbestos, and that the products’ packages and manuals did not contain warnings that disclosed asbestos’s dangers. Defense counsel contended that plaintiffs’ counsel could not prove that Assenzio, Brunck, Levy, Serna and Vincent used any product that was manufactured by either defendant, that the defendants’ products were not a substantial cause of the men’s mesothelioma and that warnings would not have altered the men’s manner of use of the defendants’ products. The defense’s expert hygienist claimed that Levy was exposed to chrysotile asbestos, and he contended that chrysotile asbestos was not a likely cause of Levy’s cancer. The defense’s expert pulmonologist opined that Levy’s cancer was not caused by asbestos. Plaintiffs’ counsel presented an expert pathologist, Dr. James Strauchen, who disagreed.

Injury:

In December 2011, Assenzio learned that he was suffering cancer of a lung. He underwent treatment that included chemotherapy and the application of radiation, but his disease could not be eradicated. He died on March 21, 2013. Assenzio, 83, was survived by a wife and three children. Assenzio‘s estate sought recovery of damages for Assenzio‘s pain and suffering. The estate also sought punitive damages, but that claim was precluded. Assenzio‘s widow, Annatolia Assenzio, sought recovery of damages for loss of consortium. In January 2012, Brunck learned that he was suffering mesothelioma. He underwent treatment that included chemotherapy, the application of radiation and a pleurectomy, which involved the removal of the lining of his lungs. His disease could not be eradicated, and he died on June 22, 2012. Brunck, 73, was survived by a wife and four children. Brunck’s estate sought recovery of damages for Brunck’s past pain and suffering. The estate also sought punitive damages, but that claim was precluded. In November 2011, Levy learned that he was suffering cancer of a lung. Doctors also rendered a possible diagnosis of mesothelioma. Levy underwent chemotherapy and the application of radiation, but his disease has not been eradicated. Levy sought recovery of damages for past and future pain and suffering. He also sought punitive damages, but that claim was precluded. Levy’s wife, Roslyn Levy, sought recovery of damages for loss of consortium. In February 2011, Serna learned that he was suffering mesothelioma. He underwent treatment that included chemotherapy, the application of radiation and a pleurectomy, but his disease has not been eradicated. Serna sought recovery of damages for past and future pain and suffering. He also sought punitive damages, but that claim was precluded. In September 2011, Vincent learned that he was suffering mesothelioma. He underwent treatment that included chemotherapy, the application of radiation and a pleurectomy, but his disease ultimately claimed his life. Vincent was survived by two daughters. Vincent’s estate sought recovery of damages for Vincent’s pain and suffering. The estate also sought punitive damages, but that claim was precluded.

Result:

The jury found that the defendants failed to provide adequate warnings that disclosed asbestos’s dangers. The jury determined that damages totaled $190 million. Mr. Assenzio‘s estate’s damages totaled $20 million, and Ms. Assenzio‘s damages totaled $10 million. Cleaver-Brooks was assigned 28 percent of the liability, and the remaining liability was assigned to parties that were not involved in the trial. Brunck’s estate’s damages totaled $20 million. Burnham was assigned 25 percent of the liability; Cleaver-Brooks was assigned 15 percent of the liability; and the remaining liability was assigned to parties that were not involved in the trial. Mr. Levy’s damages totaled $50 million, and Ms. Levy’s damages totaled $10 million. Cleaver-Brooks was assigned 24.9 percent of the liability, and the remaining liability was assigned to parties that were not involved in the trial. Serna’s damages totaled $60 million. Burnham was assigned 55 percent of the liability, and the remaining liability was assigned to parties that were not involved in the trial. Vincent’s estate’s damages totaled $20 million. Burnham was assigned 21 percent of the liability; Cleaver-Brooks was assigned 21 percent of the liability; and the remaining liability was assigned to parties that were not involved in the trial. Burnham’s monetary obligations total $42.2 million, and Cleaver-Brooks’ monetary obligations total $30.54 million. Plaintiffs’ counsel reported that offsets may be applied to those amounts.

Annatolia $10,000,000 Personal Injury: loss of consortiumEstate of Santo $20,000,000 Personal Injury: Past Pain And SufferingEstate of Robert Brunck$20,000,000 Personal Injury: Past Pain And SufferingPaul Levy$15,000,000 Personal Injury: Past Pain And Suffering$35,000,000 Personal Injury: future pain and suffering (two years)Roslyn Levy$10,000,000 Personal Injury: Past Loss Of ConsortiumCesar O. Serna$30,000,000 Personal Injury: Past Pain And Suffering$30,000,000 Personal Injury: future pain and suffering (1.5 years)Estate of Raymond Vincent$20,000,000 Personal Injury: Past Pain And Suffering

Trial Information:

Judge:

Joan A. Madden

Trial Length:

11
 weeks

Jury Vote:

6-0

Post Trial:

Plaintiffs’ counsel has expressed an intention to challenge the preclusion of the claims for punitive damages.

Editor’s Comment:

This report is based on information that was provided by plaintiffs’ counsel and Burnham’s counsel. Cleaver-Brooks’ counsel did not respond to the reporter’s phone calls, and the remaining defendants’ counsel was not asked to contribute.