McCormick v. A.W. Chesterton Company et al

Filing 95

MEMORANDUM, ORDER AND JUDGMENT: The clerk of the court is directed to enter a judgment of $980,000 against defendant. Judgment is stayed until February 25, 2013 to permit the defendant to make any appropriate motion. Ordered by Judge Jack B. Weinstein, on 1/28/2013. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Memorandum, Order and
Judgment

IN RE ASBESTOS LITIGATION

91-MD-875

KELLY McCORMICK, individually and as
Executrix for the ESTATE OF KIT L.
McCORMICK,
Plaintiff,

04-CV-2405

rkL~U
IN CLERK'S OFFICE
..
U.S. DISTRICT COURT E.D.N.1

-against-

* JAN 3 \ 20\3 *

CLEAVER BROOKS CO., INC., ET AL.,
Present Defendant.

BROOKLYN OFF\CE

JACK B. WEINSTEIN, Senior United States District Judge:
The deceased was exposed to asbestos while he worked on a variety of boilers at an Air
Force base in Kansas and at other locations. He sued the defendant, the boiler-maker Cleaver
Brooks Co., Inc. ("Cleaver Brooks"), and others alleging his injuries and death were caused by
asbestos-containing products manufactured or used by them. Cleaver Brooks supplied some
dozen boilers containing asbestos to the base. Claims against the other defendants have been
terminated.
The case against Cleaver Brooks was tried before a jury, applying Kansas law by
stipulation and under general choice-of-law rules. See Mem. and Order on in Limine Motions,
04-CV -2405, Jan. 22, 2013, CM/ECF No. 82. The parties agreed upon the jury charge,
explicating Kansas law and its pattern jury instructions, as well as the verdict sheet submitted to
the jury. See Trial Tr. 420-30, Jan. 24, 2013.

1

Under Kansas law, the burden of proof with respect to the percentage of individual
liability of defendant and other non-party persons contributing to the total damages must be
established by the defendant through a preponderance of the evidence. See Glenn v. Flemming,
240 Kan. 724, 726-27 (1987). The percentage of fault attributable to the defendant is applied to
the verdict reached by the jury. !d. Non-economic damages in the negligence and consortium
claim (belonging to the injured person and not his spouse) are limited to a total of $250,000. See
Kan. Stat. Ann. § 60-19a02. A separate $250,000 cap for damages in the wrongful death action
is also applied. See Kan. Stat. Ann. § 60-1903(a).
Set out below is the calculation of damages awarded in three columns. Column 1
includes the total amount of damages awarded by the jury. Column 2 provides the amount of
damages assessed against defendant, based on the jury's allocation of 60% of total fault for
plaintiffs injuries to Cleaver Brooks. Column 3 applies the caps of $250,000 for non-economic
damages. Total damages are $980,000.

Column 1: Total
Amount A warded by
Jury

Negligence
Action-Economic
Damages
Negligence Action
(Including Loss of
Consortium)Non-Economic
Damages
Wrongful DeathEconomic
Damages-Loss of
Marital Services
and Care
Wrongful DeathEconomic

Column 3: Amount
Attributable to
Defendant (60%) After
Application of Caps

$100,000

Column 2: Amount
Attributable to
Defendant (60%)
Before Application of
Caps
$60,000

$1,500,000

$900,000

$250,000

$300,000

$180,000

$180,000

$400,000

$240,000

$240,000

2

$60,000

Damages-Loss of
Additional Amount
of Money to estate
that Kit
McCormick Would
Have Left Were It
Not For His Death
Wrongful DeathNon-Economic
Damages
TOTAL

$900,000

$1,500,000

$250,000

$980,000

The findings of the jury on total non-economic damages of $3,000,000 were excessive.
They were appropriate when reduced pursuant to Kansas law to $500,000. The total amount of
economic damages allocated against defendant of $480,000 was justifiable. The verdict of
$980,000 was supported by the evidence.
The clerk of the court is directed to enter a judgment of $980,000 against defendant.
Judgment is stayed until February 25, 2013 to permit the defendant to make any appropriate
motion.

SO ORDERED.
1

ack B. Weinstein
Senior United States District Judge
Date: January 28, 2013
Brooklyn, New York

3