SUMMARIES WITH TRIAL ANALYSIS
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$19,550,157 VERDICT – PRODUCT LIABILITY – ASBESTOS EXPOSURE – CARPENTER CONTRACTS TESTICULAR CANCER AFTER ASBESTOS EXPOSURE – TUNICA VAGINALIS.
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New York County, NY
In this labor law action, a carpenter sued for a case of testicular cancer contracted after working with asbestos in the 1970s. The many commercial defendants attributed to the asbestos poisoning variously denied involvement and/or the causation of the condition.
The plaintiff in this matter, David K., was a carpenter on both the 622 Third Avenue and Olympic Towers job sites between 1974 and 1977. On those occasions several asbestos-containing joint compounds were ap- plied and sanded down in his presence, allegedly resulting in exposure to particulate matter and dust containing asbestos. The plaintiff asserted that this exposure resulted in his tunica vaginalis, a rare form of mesothe- lioma affecting the tissue surrounding the testicles.
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David and Ruby K. filed suit in the Supreme Court of New York, New York County for employer’s liability. The plaintiff named as the general con- tractor Tishman Liquidating Corporation (formerly Tishman Realty & Con- struction, Co., Inc.), as well as 630 Third Avenue Associates, Union Carbide, and over 20 other contractors and subcontractors allegedly a party to the plaintiff’s asbestos exposure. Non-economic and lost wages damages were sought for a violation of the New York Labor Law’s require- ment for safe workplace conditions. Settlement negotiations were confidential.
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At the nine week trial, the plaintiff argued that the negligent use of asbes- tos-containing joint compounds applied and sanded by defendant par- ties resulted in the exposure which caused his cancer. Expert testimony was heard from a materials expert and a forensic pathologist.
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The defendants presented three theories of defense, being that 1) they were not the right company, 2) the plaintiffs could not prove that there was asbestos in the joint compound, and 3) that the plaintiff’s condition was not caused by asbestos. The defendants brought Michael Sirosky, a Boston neurologist who testified that the plaintiff’s testicular mesothelioma was not caused by asbestos.
The jury deliberated for a day and a-half before returning a $19,550,157 verdict for the plaintiff, including $7 million for past pain and suffering and $12 million for future pain and suffering. The jury found Tishman Liqui- dating Corporation 76% liable for the plaintiff’s damages, with each of the three joint compound manufacturers, Kaiser Gypsum, U.S. Gypsum and Georgia Pacific, found 8% liable.
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Plaintiff’s economics expert: Lawrence Spizman from Oswego, NY. Plaintiff’s forensic pathology expert: James Strauchen from New York, NY. Plaintiff’s materials expertS: Barry Castelman from New York, NY, and Richard Hatfield from New York, NY. Plaintiff’s occupational medicine expert: Stephen Markowitz from New York, NY. Defendant’s neurology expert: Michael Sirosky from Boston, MA.
David Konstantin and Ruby Konstantin vs. 630 Third Avenue Associates, et al. Index no. 190134/2010; Judge Joan Madden, 08-17-11.
Attorneys for plaintiffs: Jordan Fox, James Long, Brian Belasky, Seth Dymond, and William Papain of Belluck & Fox in New York, NY. Attorneys for defendant: Frank Friedstedt, Esq. and Kerryann Cook, Esq. of McGivney & Kluger in New York, NY.
New York Jury Verdict Review & Analysis