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Consorti v. Armstrong World Industries, Inc.

United States District Court for the Southern District of New York · Civil Procedure

Civil ProcedureRemittiturDamagesDiversityremittiturnew trialCPLR 5501(c)deviates materially

Facts

Consorti was exposed to asbestos products, including OCF's product, while working as an insulator and later as an executive in family insulation businesses. He was diagnosed in February 1992 with pleural mesothelioma, an incurable fatal cancer, and died in November 1993 at age 51. At trial, the jury awarded him $12 million for 32 months of pain and suffering, allocating $8 million for roughly 23 months before trial and $4 million for the expected final nine months of his life. The evidence showed severe physical pain, dramatic bodily deterioration, loss of mobility and independence, emotional anguish, and awareness of imminent death.

Issue

Whether, under New York's CPLR § 5501(c) as required by Gasperini, Consorti's $12 million pain-and-suffering award materially deviated from reasonable compensation. If so, what maximum amount could be sustained without materially deviating from reasonable compensation, and whether a new trial should be granted unless plaintiff accepts remittitur.

Rule

A federal district court sitting in diversity and reviewing a claim that a verdict is excessive must apply New York's CPLR § 5501(c) 'deviates materially from what would be reasonable compensation' standard, not the federal 'shock the conscience' test. To apply that standard, the court compares the award to approved New York state awards in similar cases; those prior awards are instructive rather than binding, deference to the jury should be exercised sparingly, and the court should evaluate the totality of the plaintiff's suffering rather than rely on a rigid percentage reduction or mechanical monthly multiplier.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a products-liability suit filed in federal court in Manhattan under diversity jurisdiction, a New York plaintiff wins $9 million for pain and suffering. The defendant moves for a new trial or remittitur, arguing the award is excessive.

Which standard should the district judge apply in deciding whether the award is excessive?

Explanation. In a diversity case applying New York law, the federal district court must use CPLR § 5501(c)'s 'deviates materially from what would be reasonable compensation' standard, not the federal 'shock the conscience' test. That is the governing rule for excessiveness review of damages.