## Facts

- John Consorti worked in pipe insulation businesses from about 1960 through the mid-1970s and was repeatedly exposed to asbestos-containing products, including pipe covering made by Owens-Corning Fiberglas Corp. (OCF).
- John’s asbestos exposure occurred before he married Frances Consorti.
- Years later, John developed mesothelioma and experienced prolonged, severe pain and functional decline for roughly 30 months before his death.
- John and Frances sued multiple asbestos manufacturers in federal court under diversity jurisdiction; Frances sought damages for loss of consortium.
- The district court consolidated their action with three other asbestos cases for a single jury trial.
- The jury awarded John $12 million for pain and suffering and awarded Frances damages for loss of consortium.

## Issues

1. Whether New York law permits a loss-of-consortium claim when the injury-producing exposure occurred before the marriage, even if the disease manifested during the marriage.
2. Whether John’s $12 million pain-and-suffering award “deviates materially from what would be reasonable compensation” under New York CPLR 5501(c), requiring remittitur or a new trial on damages.
3. Whether consolidation of four asbestos cases and related trial-management rulings deprived OCF of a fair trial.

## Decision

- The court held that Frances Consorti had no cognizable loss-of-consortium claim because the tortious exposure predated the marriage; her consortium award was vacated.
- The court held that the $12 million pain-and-suffering award materially deviated from reasonable compensation under New York law.
- The court ordered remittitur of John’s pain-and-suffering damages to $3.5 million, or, at the plaintiff’s election, a new trial limited to that element of damages.
- The court rejected OCF’s challenges to consolidation and other asserted trial errors and otherwise affirmed the judgment.

## Legal Principles

- In diversity cases, state law governs the substantive standard for assessing whether a jury’s damages award is excessive.
- Under New York CPLR 5501(c), an award must be reduced if it “deviates materially from what would be reasonable compensation,” and federal courts must apply that standard to align outcomes with comparable New York cases.
- A loss-of-consortium claim under New York law is derivative and does not lie when the injury-producing tortious conduct occurred before the marital relationship began, even if harm becomes apparent later.
- Consolidation of related cases is within the district court’s discretion and is reversible only upon a showing of undue prejudice that cannot be mitigated through trial structure and instructions.

## Conclusion

The Second Circuit vacated the spouse’s consortium award because the asbestos exposure occurred before the marriage and required a remittitur of the mesothelioma victim’s $12 million pain-and-suffering award to $3.5 million (or a new damages trial), while otherwise upholding the consolidated trial and liability determinations.


Consorti v. Armstrong World Indus., Inc., 72 F.3d 1003 (2d Cir. 1995)