Consorti v. Armstrong World Industries, Inc.

John Consorti (plaintiff) fabricated asbestos pipe-covering products for Owens-Corning Fiberglas Corporation (OCF) (defendant). From exposure to asbestos dust, John developed mesothelioma and a tumor that pressed against his vocal cords, causing him to lose his voice and choke. The tumor interfered with eating, swallowing, and even breathing. As his disease progressed, it was impossible for John to walk or to care for himself. John suffered from his disease for 30 months before passing away. John sued OCF for his mesothelioma injury, and his wife, Frances Consorti (plaintiff), sued OCF for loss of consortium. Their action was consolidated with three other plaintiff couples against manufacturers of asbestos products and tried by Judge Sweet. The jury returned a verdict in favor of John for $12 million for pain and suffering. OCF argued this award was excessive and should be set aside. Justice Helen Freedman was assigned by administrative order to all New York asbestos litigation. Shortly before the Consorti trial, Justice Freedman reduced awards in many comparable cases of mesothelioma to levels far below John’s award. Justice Freedman found jury awards ranging from eight to 42 percent of John’s award all excessive under New York law. Although New York State judgments on damages for pain caused by mesothelioma were available, Judge Sweet relied instead on a monthly multiplier and a recent federal trial court decision, McPadden et al., 798 F. Supp. 937, to uphold John’s award. In McPadden, the district court upheld a jury award of $4.5 million for 10 months of pain and suffering due to mesothelioma. OCF appealed.