zucha where the court had jurisdiction over the issues, and, although the State of New York could not be sued in Supreme Court, it was subject to suit in the Court of Claims.
I conclude that in the context of this case where the Navy is not subject to suit in federal or state court, and where there is an absolute bar to suit against Navy, the issue of personal jurisdiction is not dispositive, and that for Article 16 purposes, plaintiff is unable to obtain jurisdiction over the Navy and the Navy's culpable conduct is not considered. CPLR 1601(1); see In re 5th Judicial District Asbestos Litigation (Pokorney), Index No. 2006-3087 (Sup Ct, Onondaga Co, July 2, 2008, McCarthy, J.). Article 16 is the "product of a painstaking balancing of interests." Morales v. County of Nassau, 94 NY2d 218, 224 (1999). The conclusion reached herein is consistent with the purpose of the jurisdictional exclusion of Article 16 to ensure that plaintiff sues all tortfeasors and to exclude such non-parties over whom plaintiff is unable to obtain jurisdiction.
Turning to the grave injury exclusion, under the FTCA, claims against the United States for personal injury are allowable if a private person would be liable under the laws of the state where the accident occurred. 28 USC §1346(b); see Makarova v. United States, 201 F3d 110, 113 (2nd Cir 2000). Thus, if a private person would be shielded under state law, then the United States is also shielded. See id at 115; Cox v. United States, 881 F2d 893, 895 (10th Cir 1989). Here, plaintiff alleges, and Crane does not dispute, that plaintiff did not suffer a grave injury
within the meaning of the WCL. Therefore, under New York law, an action against the Navy as a private person, that is, as plaintiff's employer, would be barred under the WCL and for that reason, the Navy's culpable conduct is not properly "considered in determining any equitable share." CPLR 1601(1). In reaching this conclusion, I reject Crane's argument that the grave injury exclusion does not apply because the Navy is not subject to the WCL, as such interpretation would render meaningless the FTCA provision permitting suit against the United States where a private person would be liable under the applicable state law.
I also reject Crane's argument that the grave injury exclusion is inapplicable because the Navy is not an employer within the meaning of the WCL. As quoted above, the second exclusion in CPLR 1601(1) refers broadly to "any person" and does not limit its applicability to the definition of employer in the WCL. However, even if the WCL definition were applicable, section 2 of the WCL defines "employer" broadly as "a person, partnership association, corporation, and the legal representatives of a deceased employer... having one or more persons in employment, including the state, a municipal corporation, fire district or other political subdivision of the state and every authority or commission heretofore or hereafter created by the public authorities law." While this definition lists various governmental entities, it is not intended to be an exhaustive list excluding all others not specifically mentioned. Having reached the above conclusions, the additional arguments raised by plaintiff in connection with CPLR 1601(1) need not be addressed.
[*24]X. ARTICLE 16 BURDEN OF PROOF AND APPORTIONMENT
Crane further fails to establish grounds to set aside the verdict based on the court's instructions with respect to Crane's burden under Article 16. A defendant seeking to apportion liability to non-party companies pursuant to Article 16, has the burden of showing that the negligence of those companies was a "significant cause of plaintiff's injuries" and the "proper
amount of equitable shares attributable to the other companies." In re New York Asbestos Litigation (Marshall), supra at 256 (citing Matter of New York City Asbestos Litigation (Ronsini), supra; Zalinka v. Owens-Corning Fiberglass Corp, 221 AD2d 830 [3rd Dept 1995]; Bigelow v. Acands, Inc, 196 AD2d 436 [1st Dept1993]).
Crane's reliance on the concurring opinion in Marsala v. Weinraub, 208 AD2d 689 (2nd Dept 1994) is misplaced. In Marsala, the concurrence found that a defendant seeking CPLR Article 16 protection need not affirmatively offer evidence establishing a co-defendant's negligence, but once there has been a determination that more than one jointly liable tortfeasor has culpability, a defendant may rely on evidence offered by plaintiff, codefendants or other parties, in meeting its burden to prove its proportionate share. Id at 697. Thus, contrary to Crane's argument, the decision does not stand for the proposition that defendant need not affirmatively prove negligence and causation of non parties for Article 16 purposes.
Moreover, the jury's decision not to apportion liability to any of the 30 non-party tortfeasors listed on the verdict sheet, is not grounds to set aside the verdict, as a fair interpretation of the evidence supports the jury's conclusion. As to the liability of the non-party tortfeasors, the jury was asked to answer a three-part question just as it was asked to answer a three-part question with respect to Crane's liability. Specifically, the jury was asked was Mr. Dummitt exposed to asbestos containing products made, sold, distributed or applied by any of the non party companies; did any of those companies fail to exercise reasonable care by not providing an adequate warning about the potential hazards of exposure to asbestos; and were those companies' failure to warn a substantial factor in causing Mr. Dummitt's mesothelioma. The apportionment question listed a total of 32 companies, including Crane and Elliot. While the jury found that Mr. Dummit was exposed to asbestos from products made, sold, distributed or applied by 18 of the 30 listed companies, the jury found only Crane and Elliot negligent in
failing to warn about the dangers of exposure to asbestos, and that their negligence was a substantial factor in causing Mr. Dummitt's injury. For the reasons stated below, a review of the relevant evidence supports a conclusion that contrary to Crane's argument, a rational view of the evidence supports the jury's findings.
The jury was instructed that a manufacturer's duty to warn extends to known dangers of asbestos or such dangers about which the manufacturer should have known concerning the use of the manufacturer's product with an asbestos containing product of another manufacturer. As detailed above, plaintiff introduced substantial evidence of Crane's specific knowledge of the dangers of asbestos through its membership in various trade associations, the participation of [*25]Crane's officers or employees in various organizations or associations whose publications and activities addressed issues related to the dangers of asbestos in the workplace and diseases caused by asbestos exposure. This evidence included the membership of various employees and officers of Crane in the Illinois Manufacturing Association, AAIPS, ASME, and IHT, and identified numerous publications by these associations discussing occupational diseases caused by exposure to asbestos. Crane, on the other hand, failed to produce similar evidence of knowledge with respect to any of the Article 16 entitles, but instead chose to rely solely on the general state of the art evidence introduced through plaintiff's expert, Barry Castelman. The absence of evidence of knowledge specific to the Article 16 companies is a sufficient basis for the jury to have concluded that Crane did not meet its burden of showing that those companies were negligent. See In re Asbestos Litigation (Marshall), supra; Matter of New York City Asbestos Litigation (Ronsini), supra.
XI. REMITTITUR AND SETOFF
In the instant case, the jury awarded Mr. Dummitt $16 million for past pain and suffering for 27 months, and $16 million for future pain and suffering for an estimated six months, for a total award of $32 million. Plaintiff's expert, Dr. Jacqueline Moline, described mesothelioma as a disease in which a tumor grows along the surface of the pleura of the lungs, and then grows inward and outward eventually "squeezing the lungs." According to Dr. Moline, typically, the tumor grows into the chest wall where there are numerous nerve endings; such growth causes a gnawing, burning, aching pain which can be excruciating and for which narcotic pain medication is generally given. The disease also causes increasingly severe shortness of breath, fatigue and weight loss. Dr. Moline testified that while there is no cure for mesothelioma, patients can
undergo extensive surgery to remove a lung and other areas impacted by the tumor, followed by radiation and or chemotherapy, and that other procedures include thoracentesis to remove fluid from the lungs.
The evidence showed that Mr. Dummitt was diagnosed with mesothelioma in March 2010 when he was 67 years old; his first symptoms appeared in May 2009; the tumor developed in his left side and at the time of trial, fluid was accumulating in his right side indicating the tumor had spread to that side; and he underwent four thoracentesises, thoracic surgery, and three courses of chemotherapy, including conventional and experimental treatments. As the disease progressed, Mr. Dummitt suffered from increasing shortness of breath, chronic "breakthrough" pain, and loss of appetite resulting in severe weight loss. Dr. Moline described "breakthrough" pain as pain which breaks through the pain medication the patient has been given. In addition, as a result of one type of pain medication he was taking, Mr. Dummitt developed severe itching throughout his body which required a change in medication. For three months