New trial for Petro v. Mario & DiBono Plastering et al. a success for Bates White client
In Petro v. Mario & DiBono Plastering et al., Jorge Gallardo-García assisted the defendant—following a $28.5 million verdict in favor of the plaintiff—in demonstrating to the court that the verdict needed to be vacated. Dr. Gallardo-García used his extensive experience in asbestos claims analysis to show that Mr. Petro could have qualified to file claims with dozens of asbestos bankruptcy trusts. That analysis led to discovery that uncovered dozens of trust claims filed by Mr. Petro that had not been previously disclosed to the court at trial. Based on the trust claims not disclosed during trial, the judge ordered a new trial, a result that can have significant implications for discovery in future similar mass torts claims.
The plaintiff's history
James Petro, Sr. worked around asbestos and was exposed to asbestos-related products throughout his career. In the early 1990s he filed a lawsuit alleging asbestosis against several asbestos defendants and received payouts. Then in 2020 Mr. Petro was diagnosed with lung cancer. In James Petro Sr. v. Mario & DiBono Plastering Co., Inc., et al., he filed suit against asbestos defendants. After a three-month trial in 2023, a jury awarded him $28.5 million in compensatory damages.
Through discovery conducted post-trial, defendants found that Mr. Petro’s attorneys had failed to disclose 35 settlements arising from the asbestosis claim and 54 bankruptcy trust proofs of claim filed on behalf of Mr. Petro in 2023 for his lung cancer diagnosis. As a result, the defendants filed motions requesting a retrial and for vacating the $28.5 million award. The judge granted the motion for retrial as to damages and set aside the $28.5 million award.
The crux of the issue
Counsel for Mario & DiBono retained Dr. Gallardo-García to analyze Mr. Petro’s eligibility to file trust claims; any money Mr. Petro collected from these trusts could offset Mario & DiBono's payment of his plaintiff verdict award and potentially demonstrate other sources of asbestos exposure.
Extensive research reveals the potential for dozens of trust payments and alternative exposures
Dr. Gallardo-García submitted two affirmations regarding the claims Mr. Petro may have been eligible to file against dozens of trusts of companies that manufactured or installed asbestos-containing products. Dr. Gallardo-García performed extensive research to find relevant information to perform his analysis. He used information provided in discovery as well as publicly available data—such as claims filing data from Mr. Petro’s attorneys and job sites and dates of employment to investigate whether the individual may qualify for trust claims payments—to demonstrate that Mr. Petro could have already received payments from many of the trusts if he had pursued them.
New trial ordered
New York County Supreme Court Justice Lyle E. Frank stated that Mr. Petro’s counsel failed to timely disclose bankruptcy and settlement records from past asbestosis claims that could have changed the outcome of his lung cancer-related suit. On July 23, he ordered a new trial on liability and damages.
This significant success in challenging the plaintiff’s award on the basis of information not disclosed can have significant implications for the discovery sought in this type of mass torts claims. This result may help in arguing for discovery into the extent to which a plaintiff has filed claims in other proceedings that might reduce their damages in the current proceeding and that may demonstrate the existence of alternative sources of exposure not previously disclosed to defendants.
Dr. Gallardo-García was supported by a team that included Jessie Osgood.