Depascale et al v. Sylvania Electronic Products, Inc. et al

Filing 168

MEMORANDUM AND ORDER re 167 letter. SO ORDERED that no further pretrial conferences will be held and jury selection will proceed as scheduled. Ordered by Senior Judge Leonard D. Wexler on 6/27/2011. (Glueckert, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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GERARD DEPASCALE, LIAM NEVILLE

AND JOANNE DEPASCALE,

MEMORANDUM AND ORDER
CV 07-3558

Plaintiffs,

(Wexler, J.)

-against­
SYLVANIA ELECTRIC PRODUCTS,
INC., et aI.,
Defendants.

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APPEARANCES:
ENENSTEIN & ASSOCIATES, PC
BY: DARREN S. ENENSTEIN, ESQ.
233 Wilshire Boulevard, Suite 900
Santa Monica, CA 90401
Attorneys for Plaintiffs
GONZALEZ & ROBINSON, PC
BY: JOSEPH D. GONZALEZ, ESQ.
KEITH A. ROBINSON, ESQ.
Attorneys for Plaintiffs
2801 Townsgate Road, Suite 111
Westlake Village CA 91361
PAUL, HASTINGS, JANOFSKY & WALKER LLP
BY: NEDN. ISOKAWA, ESQ.
JOHN P. PHILLIPS, ESQ.
Attorneys for Defendants
55 Second Street
San Francisco, CA 94105
KIRKLAND & ELLIS LLP
BY: WILLIAM H. PRATT, ESQ.
FRANK HOLOZUBIEC, ESQ.
ANDREW G. HORNE, ESQ.
Attorneys for Defendants
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Citigroup Center

153 East 53 rd Street

New York, NY 10022

ROBERT L. FOLKS & ASSOCIATES, LLP

BY: ROBERT L. FOLKS, ESQ.

Attorneys for Defendants

510 Broad Hollow Road, Suite 304-A

Melville, NY 11747

WEXLER, District Judge
This is a negligence action in which Plaintiffs sought damages for injuries alleged to have
been caused by exposure to certain non-nuclear chemicals and solvents. The exposure was
alleged to have taken place while Plaintiffs Gerard DePascale and Liam Neville were employed
at a site that, years before their employment, was used as a nuclear rod manufacturing facility
(the "Site"). Plaintiff Joanne Depascale sought damages for loss of her husband's services.
This case was tried before ajury, which found that Plaintiffs were entitled to the
aggregate sum of $12 million. After the jury trial, this court ruled on Defendant's post-trial
motions, pursuant to Rule 50 of the Federal Rules of Civil Procedure, for judgment as a matter of
law, or in the alternative, for a new trial pursuant to Rule 59 of the Federal Rules of Civil
Procedure.
The court assumes familiarity with its Memorandum and Order on the post-trial motions,
see Depascale v. Sylvania Elec. Products, Inc., 710 F. Supp.2d 275 (E.D.N.Y. 2010). Briefly
stated, the court denied the motion to the extent that it argued that the expert medical testimony
compelled a decision in favor of Defendant. A new trial was granted, however, pursuant to Rule
59 of the Federal Rules of Civil Procedure, with respect to the issue of whether the evidence
compelled only a single reasonable conclusion regarding whether Defendant should have

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prevailed with respect to the affinnative defense known as the "government contractor defense."
With respect to that defense, the court noted that the jury was instructed as to the
elements of the government contractor defense, as set out in Second Circuit precedent, and in the
previously denied motion for summary judgment herein. See,~, Brinson v. Raytheon Co., 571
F.3d 1348, 1351 (2d Cir. 2009); In re Agent Orange Litigation, 517 F.3d 76, 88 (2d Cir. 2008).
Thus, the jury was instructed that for the defense to apply, they would have to find that the
Defendant proved, by a preponderance of the evidence that:
•

the government (in this case the Atomic Energy Commission) approved reasonably
precise specifications for the work to be done at the site;

•

that the work done confonned to those specifications; and

•

that Defendant (Verizon's predecessor, Sylvania) warned the government of dangers of
carrying out the contract that were known to Sylvania, but not known to the government.
The court offered to charge the jury to answer specific interrogatories as to each element

of the government contractor defense. That offer was rejected, and the parties agreed to a single
interrogatory, asking the jury to respond "yes," or "no," to the question, "Did Defendant establish
its entitlement to the government contractor defense?" The jury responded, "No."
While the court found sufficient evidence to deny Defendant's Rule 50 motion for
judgment as a matter of law as to the government contractor defense, the court made no similar
holding with respect to the Rule 59 motion. The court characterized the evidence supporting the
defense as "overwhelming." The court noted that the issue was whether such overwhelming
evidence undennined the jury verdict to such an extent as to require granting a new trial. The
court held that it did, and granted the motion for a new trial.
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Subsequent to the granting of a new trial, the court allowed the parties the opportunity to
take any additional discovery they deemed fit to prepare for trial. The parties have taken
advantage of that opportunity and, in addition, have explored the possibility of settlement. No
settlement has been agreed upon, and the parties are currently engaged in completing discovery,
pursuant to agreement, in anticipation of the upcoming, and long scheduled trial.
The parties have recently sent correspondence to the court seeking to make motions for
summary judgment and clarification of the issues that will be tried. As to motions for summary
judgment, the court notes that it long ago found that issues of fact with respect to the government
contractor defense preclude the entry ofjudgment. The court's decision on the post-trial motion
also makes clear that the issue of the government contractor defense must be resolved by way of
a new trial. As to the request for a conference to clarify the issues that are to be tried, the court
holds that no conference is necessary and refers the parties to the clear language of its post-trial
decision:
The new trial shall be limited only to the issue of the government contractor defense, and
whether that defense is precluded because, during the relevant time period, Sylvania was engaged
in both government and private business at the Site. No other matter will be re-tried, including
any argument that Sylvania's breach of contract precludes it from taking advantage of the
government contractor defense.
The court is unaware as to how a conference will assist the parties in clarifying this
holding. The new trial will be held on the sole issue of whether Plaintiffs' claims are barred by
the government contractor defense. The court's previous decision and jury instructions make
clear the law that the jury will apply. No further pretrial conferences will be held and jury
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selection will proceed as scheduled.
SO ORDERED.

/

(LEONARD 6. WEXLER

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/
UNITED STATES DISTRICT JUDGE

Dated: Central Islip, New York
June 27, 2011

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