Lustenring held that evidence of the plaintiff working all day and for prolonged periods of time "in clouds of dust" resulting from the manipulation and crushing of packing and gaskets containing asbestos, along with expert testimony that the dust was from asbestos and not just industrial air in general, supported a conclusion that the dust contained enough asbestos to cause mesothelioma ( 13 A.D.3d at 70, 786 N.Y.S.2d 20 ). Although Lustenring was decided before Parker, the causation analysis in Lustenring continued to be applied by the Appellate Division and the trial courts even after Parker and its Court of Appeals progeny were decided (see Matter of New York City Asbestos Litig. [Sweberg] , 2015 N.Y. Slip. Op. 30043[U], 2015 WL 246547, at *5 [Sup. Ct., N.Y. County 2015], affd as modified 143 A.D.3d 483, 39 N.Y.S.3d 411 [1st Dept. 2016], lv. dismissed 28 N.Y.3d 11165, 49 N.Y.S.3d 93, 71 N.E.3d 586 [2017] ; Matter of New York City Asbestos Litig. [Hackshaw] 143 A.D.3d 485, 39 N.Y.S.3d 130 [1st Dept. 2016] ; affd. 29 N.Y.3d 1068, 57 N.Y.S.3d 462, 79 N.E.3d 1125 [2017] ); Penn v. Amchem Prods. , 85 A.D.3d 475, 925 N.Y.S.2d 28 [1st Dept. 2011] )
The court properly precluded evidence of an experiment conducted by a defense expert, as the conditions under which the experiment was performed were not sufficiently similar to those experienced by the decedent during his exposure, and thus the evidence could have misled the jury (seeBradshaw v. Lenox Hill Hosp., 158 A.D.3d 427, 67 N.Y.S.3d 819 [1st Dept. 2018] ). The evidence that the boilers contained asbestos-containing products from third parties, and/or that asbestos-containing products would be used in conjunction with defendants' products, was sufficient to render appropriate a jury charge on the duty to warn, and the content of the court's charges on the issue of duty was correct (see e.g. Matter ofNew York City Asbestos Litigation [Sweberg], 2015 N.Y. Slip Op 30043(U), 2015 WL 246547, *5–7 [Sup. Ct., N.Y. County 2015], mod on other grounds 143 A.D.3d 483, 39 N.Y.S.3d 411 [1st Dept. 2016], lv dismissed 28 N.Y.3d 1165, 49 N.Y.S.3d 93, 71 N.E.3d 586 [2017] ). However, we find that the damages award for the decedent's pain and suffering must be reduced as it deviates materially from what would be reasonable compensation ( CPLR 5501[c] ; seeNew York City Asbestos Litig. [Miller], 154 A.D.3d at 441, 60 N.Y.S.3d 822 ; Penn v. Amchem Prods., 85 A.D.3d at 475, 925 N.Y.S.2d 28 ).
The court properly precluded evidence of an experiment conducted by a defense expert, as the conditions under which the experiment was performed were not sufficiently similar to those experienced by the decedent during his exposure, and thus the evidence could have misled the jury (see Bradshaw v Lenox Hill Hosp., 158 AD3d 427 [1st Dept 2018]). The evidence that the boilers contained asbestos-containing products from third parties, and/or that asbestos-containing products would be used in conjunction with defendants' products, was sufficient to render appropriate a jury charge on the duty to warn, and the content of the court's charges on the issue of duty was correct (see e.g. Matter of New York City Asbestos Litigation [Sweberg], 2015 NY Slip Op 30043[U], *5-7 [Sup Ct, NY County 2015], mod on other grounds 143 AD3d 483 [1st Dept 2016], lv dismissed 28 NY3d 1165 [2017]).
(See Matter of New York City Asbestos Litig. [Sweberg] , Index No. 190017/2013, 2015 NY Slip Op. 30043[U], at *7 [Sup Ct, NY County Jan. 7, 2015], aff'd , 143 AD3d 483 [1st Dept 2016] ; accordShurgan v. Tedesco , 179 AD2d 805, 806 [2d Dept 1992].)