Categorized | Uncategorized

Trial Court Upholds $3 Million Dollar New York Mesothelioma Verdict Against Crane Co.

<iframe width=”560″ height=”315″ src=”” frameborder=”0″ allowfullscreen></iframe>
We reported the results of this case in an depth interview with Mike Ponterio . See Below is the tiral court opinion upholdingthe verdict.
Index No. 2010-12499
Judicial Hearing Officer
Attorneys for Plaintiffs ‘
By: Dennis P. Harlow, Esq.
Attorneys for Defendant Crane Co.
By: Angela DiGiglio, Esq.
Suttner v. A. W. Chesterton Co., et al.
Index NO.2010-12499
The court has considered the following papers: notice of motion by defendant
Crane Co. to set aside the verdict and for judgment in its favor pursuant to CPLR
4404(a), dated November 6, 2012.; affirmation in support of Angela DiGiglio, Esq.,
dated November 6,2012; affidavit in opposition of Dennis P. Harlow, Esq., sworn to
December 6,2012; defendant Crane Co’s reply, dated January 7,2013..
In this action, plaintiff recovered for personal injuries and wrongful death resulting
from mesothelioma contracted by her decedent, Gerald W. Suttner, as a result of
exposure to asbestos during his employment at the General Motors Power Train plant
in Tonawanda,. New York (Chevy). Plaintiff contends that Gerald Suttner’s work with
asbestos- containing materials used in and on valves manufactured and supplied by
defendant Crane Co. (Crane) was a substantial factor in the development of his illness.
This trial in matter, in which Crane was the sole remaining defendant,’ began on
October 9, 2012. On October 23, the jury reached its verdict finding that Mr. Suttner
was exposed to asbestos-containing gaskets or packing while working on Crane
valves; that those valves were defective because of Crane’s failure to warn of the
danger of asbestos-containing gaskets or packing; and that the defective Carne valves
were a substantial factor in causing Mr. Suttner’s injuries. The jUry .awarded plaintiff
executrix $1,000,000 for decedent’s past pain and suffering; $ 750,000 was awarded
to plaintiff individually for loss of decedent’s services and society; $500,000 was
awarded for past monetary loss sustained by decedent’s daughter and $750,000 for
25 years for her future monetary loss. Crane’s share of the responsibility for Gerald
Suttner v. A. W. Chesterton Co., et a/.
Index No. 2010-12499
Suttner’s ‘injuries was found to be four percent.
Crane moves pursuant to CPLR 4404(a) to set aside the verdict and for jUdgment
as a matter of law that it had no legal duty to decedent. Crane argues that New York
, does not recognize a duty, to warn on the part of an equipment manufacturer for’
products it did not put into the stream of commerce; that it had no duty to warn of
dangers inherent in another’s product, even if use of those products with its valves was
foreseeable and that the” component parts doctrine” mandates dismissal as a matter
of law.
Although Crane concedes that it may have manufactured and supplied valves
containing asbestos to Chevy 1 it argues that plaintiff presented no evidence that her
decedent worked with any of that original material. Crane also asserts: that there was
, no evidence in the trial record that its valves required the use of asbestos-containing
gaskets or packing to function; the record did show that other materials were suitable
to seal and connect valves and were available to Chevy; and that it was Chevy’s
choice, not Crane’s, to use asbestos-containing material with the Crane valves. Crane
maintains that it did not have any role in Chevy’s use of the valves, or their incorporation
into Chevy’s piping systems. Crane also points out that the asbestos-containing
1 For example, in a footnote in its memorandum of law, Crane states: “At
the time of sale, Crane Co’s valves may have contained an internal ‘bonnett’
gasket and internal stem packing, both of which mayor may not have contained
Suttner v. ,A. W. Chesterton Co., et a/.
Index No.2010-12499
gasket and packing material used by Mr. Suttner in his work maintaining and repairing
Crane valves was supplied by Garlock, as he testified in his video-taped trial testimony.
It alleges that plaintiff conceded on the record that Crane was not the source of the
asbestos to which decedent was exposed..
Plaintiff opposes the motion and urges the court to resist this latest of Crane’s
“perennial attempts” to have a New York court rule that it can not be liable for injuries
resulting from the use of asbestos components with its valves. To the contrary, plaintiff
argues, Crane is responsible for injuries resulting from its defective valves, that the
asbestos-containing replacement parts were substantially identical to the valves’ original
asbestos-containing gaskets and packing supplied at the time ofsale. Plaintiff maintains
that Crane is liable for injuries resulting from intended or foreseeable uses of its valves.
Plaintiff also takes issue with Crane’s argument that the component parts doCtrine
insulates it from liability for its valves, asserting that the valves were finished products,
not merely components. Contending that Crane mischaracterizes the facts, plaintiff
maintains that the record shows that it’s valves were asbestos-containing and thus
dangerous at the time they were sold to Chevy; With respect to defendant’s suggestion
that the valves could have been used in other applications, plaintiff maintains that Crane
designed and advertised its valves for high pressure steam use, fitting them with
asbestos gaskets and packing before sale, expecting that the valves would be used for
high pressure steam lines, and its product was used as intended. Plaintiff contends that
Suttner v. A.W Chesterton Co., et a/.
Index No.2010-12499
at trial, Crane admitted that it did not know of any other material that could perform as
well as asbestos for valve packing and gasketing prior to at least 1970, and that
testimony at the trial revealed that asbestos was the only effective gasket material that
could be used on steam lines during the relevant period.
A court may not set aside a verdict as a matter of law based upon insufficiency
of the evidence unless no valid line of reasoning and permissible inferences could
possibly lead rational jurors to the conclusion they reached (see Cohen v Hallmark
Cards, Inc. 45 NY2d493, 499 [1978]; Zane v Corbett, 82 AD3d 1603, 1606 [2011])
Evidence adduced at trial in a case such as this must be viewed in the .light most
favorable to the plaintiff (see Penn vAmchem Prods., 85AD3d 475 [2011]). While a trial
court has discretionary authority upon review of the trial record to set aside a verdict if
it finds that the jury could not have reached it on any fair interpretation of the evidence
(see Husak v 45th Ave. Hous. Co., 52 AD3d 782 [2008]), such a finding is not warranted
Crane’s argument that it cannot be held liable for injuries resulting from the use
of its valves’ asbestos components and that it had no duty to warn under the component
part doctrine fails. It is well established in New York law that” ra] manufacturer has a
duty to warn against latent dangers resulting from foreseeable uses of its products of
which it knew or should have known” (Liriano v Hobart Corp., 92 NY 2d, 232 , 237 I
citing Rastelli, 79 NY2d 289 at 297). “A manufacturer also has a duty to warn of the
Suttner v. A. W. Chesterton Co., et al.
Index NO.2010-12499
danger of unintended uses of a product provided those uses are reasonably
foreseeable” (Liriano at 237, citations omitted) . Foreseeable uses can include
modifications by third parties (see Liriano; Baum v Eco-Tee, Inc., 5 AD3d 842 [2004] ;
Berkowitz v A.C.& S., Inc., 288 AD2d 148 (2001). “A manufacturer or retailer may …
incur liability for failing to warn concerning dangers in the use of a product which come
to its attention after manufacture or sale…” (Cover v Cohen, 61 NY2d 261, 274 [1984]).
A manufacturer may be held liable where a plaintiff is injured by replacement parts,
which it neither supplied nor specified, which are substantially similar to the original
parts. (see Sage vFairchi/d-Swearingen Corp., 70 NY2d 579 [1987]; Ba/eno vJacuzzi
ResearchSys., 93AD 2d 982 [1983]; Cal/vBannerMeta/s,45AD3d 1470 [2007]; Penn
v Jaros, Baum & Bo//es, 25 AD3d 402 [2006]; Baum; Rogers v Sears, Roebuck & Co.,
268 AD2d 245 [2000]; and Village ofGroton v Tokheim Corp., 202 AD2d 728
Here, the trial record contains ample evidence from which the jury could conclude
that Crane’s valves were manufactured and supplied with asbestos-containing materials
and that Crane had specified the use of asbestos for packing and gaskets for its valves.
Evidence at trial also allowed the jury to conclude that Crane designed and marketed
a product which, when used for one of its intended purposes, on high pressure steam
lines, required asbestos-containing gaskets and packing. In addition, the record
contained evidence that Crane knew that the packing and gaskets in its valves would
Suttner v. A. W. Chesterton Co., et al.
Index No.2010-12499
need to be replaced and in fact issued manuals detailing how to perform this work on
its valve. (see, e.g. Plaintiff’s Ex. 24 Crane’s Manual “Piping Pointers for Industrial
Maintenance”), so that the julY’s verdict was not irrational. Plaintiff’s evidence supports
her claim that Crane knew routine operation of its valves would transform the asbestos
in the gaskets from an encapsulated state to a friable state, creating a risk to those
persons in the vicinity of the valves without giving warnings for their benefit.
Furthermore, It was undisputed at trial that Crane never gave any warnings concernin”g
the use of asbestos in and on its valves.
Crane, relyin!;J principally on Rastelli v Goodyear Tire and Rubber I 79 NY2d 289
(1992) for its argument that a manufacturer has no duty to warn about another
manufacturer’s product used in conjunction with its product and that New York imposes
liability only upon the entities that put allegedly injurious products into the stream of
commerce, has made this argument many times to this court, as well as others. This
court has denied numerous similar motions made by Crane. In Sawyer v A. C. & S.,(
32 Misc 3d 1237 (A) [2011]), Justice Sherry Klein Heitler denied Crane’s motion for.
summarY judgment where Crane had relied upon the same arguments it makes here,
“The Court thus finds that a manufacturer’s liability
for third-party component parts must be determined by the
degree to which injury from the component parts is
foreseeable to the manufacturer. Accordingly, the issue
of Crane’s liability for third-party component products rests
Suttner v. A.W Chesterton Co., et a/.
Index NO.2010-12499
in the degree to which Crane could or did foresee that its own
. products would be used with asbestos-containing components.
Where Crane’s products merely could have been used with
aSbestos-containing components, the New York Court
of Appeals holding in Rastelli cautions against imposing
liability. Yet where, as in Berkowitz, Crane meant its products
to be used with asbestos-containing components or knew
that its products would be used with such components, the
company remains potentially liable for injuries resulting
from those third-party manufactured and installed components.”
(id. [emphasis supplied; internal quotations omitted])
Justice Joan A. Madden in In re: New York City Asbestos Lit. (Dummitt), (36
Misc.3d 1234(A)[2012 ) declined to overturn a verdict against Crane in favor of a Navy
veteran with mesothelioma. She Madden assessed Crane’s stream of commerce
argument. Crane, citing Amatulli v Delhi Construction Corp., 77 NY2d 525 (1991),
Codling v Paglia, 32 NY2d 330 (1973) and Rastelli, maintained in Dummitt as it does·
here, that under New York law, it had no duty to warn with respect to products it did not
manufacture or place in the stream of commerce. Dummitt held that defendants could
be liable for products it neither manufactured or supplied. Adopting the Sawyer
analysis of Rastelli and Berkowitz, Judge Madden found that where plaintiff had
demonstrated “a connection between Crane’s product and the use of the defective
products, and Crane’s knowledge ofthis connection, such that, under Berkowitz, Crane
could be potentially liable based on a duty to warn theory as a manufacturer who meant
for its product to be used with a defective product of another manufacturer, or knew or
Suttner v. A.W Chesterton Co., et a/.
Index No.2010-12499
should have known of such use” (id. at 5) .The jury had sufficient evidence here to find
such a connection.
Crane’s argument that its valves fall within the component parts exception to strict
products liability fails.
“[W]here a component part manufacturer produces a
product in accordance with the design, plans and
specifications of the buyer and such design, plans
and specifications do not reveal any inherent danger
in either the component part or the assembled unit,
the component part manufacturer will be held blameless
for an injury to the buyer’s employee ‘in a strict
products liability action”. ,
Leahy v Mid- West Conveyor Co., 126 AD2d 16,18 (1986):
There was no evidence adduced at this trial that Crane manufactured or
designed its valves in accordance with anyone else’s plans or specifications. In addition,
Crane cannot show that it had no knowledge of the inherent danger of asbestos used
with its valves (see Gray v R. L. Best Co., 78 ADd3d 1346 (2010).
Crane relies on some “recent” cases including the Fourth Department decision
in Drabczyk v Fisher Controls Int’I, LLC , 92 AD3d 1259 (2012) Iv denied 19 NY3d
. 803(2012), the Southern District’s decision in Surre v Foster Wheeler, LLC, 831 F Supp
2d 797 (2011) and Judge James W. McCarthy’s letter decisions and orders in Egelston
. v’Air & Liquid Sys. Corp. (Sup Ct ,Onondaga County, July 11, 2012 and Jones v Air
& Liquid Sys. Corp. (Sup Ct , Oneida County, July 11, 2012). Defendant has also cited
Suttner v. A. W. Chesterton Co., et a/.
Index NO.2010-12499
a number of out of state cases in support if its argument.
The relevant language in Orabczyk is ” [A]lthough we agree with defendant that
Supreme Court erred in charging the jury that defendant could be liable for decedent’s
exposure to asbestos contained in products used in conjunction with defendant’s valves
(see, generally Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297-298 [1992]),
we nevertheless conclude that the error is harmless”. Orabczyk is distinguished from
the case at bar. The issue there concerned exterior insulation, a product not at issue
here. Judge Madden noted that defendant’s counsel,in”Orabczyk had conceded that
it was liable for replacement gaskets and packing, and that plaintiff’s counsel
maintained that there was no evidence that defendant knew that asbestos insulation
would be used with its valves. (Oummitt at 5). ,
Surre is also distinguishable from this matter, it is also an insulation case. The
. court noted that there was no proof in the record that Crane supplied the insulation used
on its boilers or had any knowledge that asbestos would be used. I note that again that
Surre recognized that where “circumstances strengthen the connection” between the
defendant’s product and the defective replacement parts, “a duty to warn may arise”,
citing Rogers (831 F Supp 2d at 801). Surre also held that the duty to warn same duty
may arise if the manufacturer knew that the defective product would be used with its
product pursuant to contract specifications, cjting Berkowitz. (id.)
With respect to Judge McCarthy’s summary judgment decisions which adopt the
Suttner v. A.W Chesterton Co., et a/.
Index NO.2010-12499
reasoning found in Drabczykand Surre and depart from that court’~ past reliance on
Berkowitz, each is specifically restricted to the facts of the particular case. In addition,
this was a full blown trial. Each side had a full and complete opportunity to elicit and to
counter all the relevant facts within the confines of the trial.
Finally, I am unpersuaded by out -of-state precedent. The law in NewYork on this
issue is clear. For the foregoing reasons, Crane’s motion to set aside the verdict and
for judgment in its favor is denied.
Dated: Buffalo, New York
March 15, 2013
John P. Lane
icial Hearing Officer
t~AR 1. 5′ 2013
By{1»u ceLt! < (J <~
Judicial Hearing Officer
March 15, 2013
Dennis P. Harlow, Esq.
Lipsitz & Ponterio, LLC
Fifth Floor
135 Delaware Avenue
Buffalo, New York 14202- 2410
Angela DiGiglio, Esq,
K &L Gates LLP .
599 Lexington Avenu~ •.. .
New Yark, New York 10022
Phone (716) 845-9459
Fax (716) 845-7542
RE: Eighth Judicia/’fJistrict A~b~’stds’Litiga’tion
deceased, ahd Individually as the Surviving Spouse of GERALD SUTTNER v
Erie County .Index No. 1.2010- 12499
Dear Counselors:
Enclosed please find my Decision and Order.

Comments are closed.

Product Safety News

Top Practice Areas

Mesothelioma, Medical Malpractice, Birth Injury, Spinal Cord Injury, Failure to Diagnose Cancer, Cerebral Palsy, Brain Injury, Personal Injury, Car Accidents, Truck Accidents

New Jersey
Birth Injury, Medical Malpractice, Mesothelioma, Personal Injury, Car Accidents, Truck Accidents

Cohen, Placitella & Roth, P.C.