Burnham isn't ready to present appeal of $7M NYC asbestos verdict; Arguments postponed to '19

By John O'Brien | Oct 18, 2018

Manhattan Supreme Court  

NEW YORK (Legal Newsline) – The appeal of a once-$22 million asbestos verdict in New York City is delayed until February, as an appeals court has granted Burnham LLC’s request for more time to prepare it.

The Appellate Division, First Department will now hear arguments during its February term in the lawsuit on behalf of the Estate of Frank Gondar, who died from mesothelioma after claiming he was exposed to asbestos from Burnham’s boilers during a side career performing electrical work and other contractor services.

Burnham was found 25% liable for a $22 million verdict in 2016, but that verdict was later cut to $7 million. 

Still, the company claims the verdict was the product of errors made during the trial.

“Plaintiff failed to sponsor reliable expert testimony sufficient to quantify his exposure levels or otherwise provide any scientific expressions of his exposure level with respect to Burnham’s product, let alone establish that the exposure level, as expressed, was sufficient to cause mesothelioma,” the company wrote last year when preparing its appeal.

Gondar was an NYC police officer and then a teacher who also ran a part-time construction business from 1953-73. Most of his work involved installing drywall and floor tiles in basements, and there were often other contractors at the works sites removing boilers at the same time. He identified those boilers as Burnham’s.

Belluck and Fox lawyer Seth Dymond told Legal Newsline in 2016 that asbestos dust was spread into the air as sledgehammers were used on the boilers to move them out of basements.

Jurors agreed with Dymond’s arguments, awarding $12 million for past pain and suffering and $10 million for future pain and suffering. Gondar was still alive at the time of the verdict but passed away in September 2016 at age 87.

Post-trial motions followed the verdict, asking Justice Martin Shulman to overturn it. In February 2017, he vacated the award and ordered a new trial on damages unless Gondar agreed to a reduction of the verdict to $7 million, which he did.

Burnham seems to be preparing an appeal with, at least, the following five arguments:

-Gondar did not provide evidence legally sufficient to prove causation;

-The jury’s allocation of 25% of Burnham’s injuries to Burnham was wrong, considering there were 16 other defendants that made products on which Gondar worked;

-Burnham was prevented from submitting discovery responses from other defendants that could have been blamed for Gondar’s condition;

-The court made “improper and prejudicial characterizations” of the evidence; and

-The court would not allow Burnham to ask Gondar about possible exposure to asbestos while working for the U.S. Army and Bethlehem Steel.




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