Defendant’s Motion to Reduce the Award Money in Mesothelioma Lawsuit

Money Award Reduction of co-plaintiff Margaret D'Ulisse in Mesothelioma Lawsuit

The defendant has asked to reduce the award of co-plaintiff Margaret D'Ulisse to between $100,000 and $200,000. However, there is no discussion of why the award should be reduced from the $2.5 million awarded for past and $2.5 million for future pain and suffering, citing no cases in which awards were made for similar injuries.

Plaintiffs, on the other hand have cited Pescatore v Pan Am, 97 F3d 1 (2d Cir. 1995) which affirmed an award of $19,000,000 for loss of past and future services and society although approximately $5,000,000 was for accrued interest.

Plaintiffs also cite Harvey v Mazal American Partners, 165 AD2d 242, 566 NYS2d 242 (1st Dept 1991) rev'd on other grounds, 79 NY2d 218, 581 NYS2d 639 (1992). However, there the Court only affirmed a $900,000 loss of consortium award.

Determining what would be reasonable compensation is particularly difficult in this action. Despite defendant's attempt to reduce the verdict to an arithmetic finding of pain and suffering per year, New York adheres to the totality of circumstances approach (Jones v Simeone, 112 AD22d 772, NYS2d 170 [4th Dept 1985]).

This entails a subjective evaluation of the severity and duration of the suffering and the apprehension of impending death, id. In Juiditta v Bechachem Steel, 75 AD2d 126 428 NYS2d 535 (4th Dept 1980), the award of $70,000 for pain and suffering in 1980 where the fatally injured deceased lived for about one hour was affirmed.

How does the plaintiff's three years of current and continuing pain, suffering and anguish 27 years after Juiditta stack up against that?