Peritoneal Mesothelioma Verdict Over Take-Home Gasket Dust Stands at $10.4 Million After Appeal

In January 2017, a New York County jury returned a $75 million verdict for Marlena Robaey, who had peritoneal mesothelioma, and her husband, Ed. The case was tried in the New York City Asbestos Litigation before Justice Joan A. Madden. After a post-trial reduction and an appeal, $10.4 million stood.

Mrs. Robaey was 49 at the time of the verdict. Her illness was a mesothelioma of the abdominal lining, a cancer linked to inhaled asbestos fibers. Her exposure came at home. She testified that she worked alongside her husband on engine gasket jobs over a period of years, breathing the visible dust as gaskets were scraped and ground. She also swept out the family garage after each gasket change and carried the couple's dusty clothes into the laundry room to wash them.

The engine gaskets at issue were made by Felt Products Manufacturing Co. (Fel-Pro). Company representatives and the defense's own experts testified that gaskets of that type contained between 50 and 85 percent asbestos. Plaintiffs' experts testified that visible dust from such products necessarily contained enough asbestos to cause her disease. The defense argued that her exposure had not been shown to be large enough to cause it. Dana Companies, LLC, the other defendant that went to verdict, settled after trial.

The jury found that asbestos was a substantial factor in her illness and found the remaining defendants reckless. It awarded Mrs. Robaey $50 million, made up of $40 million for past pain and suffering and $10 million for future pain and suffering. It awarded Mr. Robaey $25 million for loss of consortium, $15 million for the past and $10 million for the future. Mrs. Robaey died after the trial.

Justice Madden rejected the defense challenge to causation and left the finding of liability in place, but cut the total to $17.25 million: $16 million to Mrs. Robaey and $1.25 million to her husband. Weitz & Luxenberg, P.C., with Alani Golanski of counsel, represented the Robaeys through the appeal.

Federal-Mogul Asbestos Personal Injury Trust, the successor to Felt Products, appealed the judgment. On August 6, 2020, the Appellate Division, First Department, held by a 3 to 1 vote that the evidence of specific causation was legally sufficient and that the verdict was not against the weight of the evidence. Justice Friedman dissented and would have thrown the verdict out. The panel found that the awards for past pain and suffering and past loss of consortium still deviated materially from reasonable compensation. It ordered a new trial on those two items unless the plaintiffs agreed to $5.5 million for past pain and suffering and $650,000 for past loss of consortium. The $4 million for future pain and suffering and $250,000 for future loss of consortium were not disturbed, which brings the judgment to $10.4 million.