I am extremely curious to hear what you think about the following case:

In Reynolds v. Achem Prods. Inc., the plaintiff commenced an action against defendants Garlock and Niagara, claiming that her husband contracted an incurable disease through exposure to asbestos contained in products manufactured by the defendants, among others.  Prior to the trial, the plaintiff and Niagara entered into a high-low agreement, capping Niagara’s exposure at $185,000.  Neither Garlock, nor the jury had knowledge of the agreement.  The trial court was apprised of the agreement.

The jury returned a verdict apportioning 60% liability against Garlock and 40% against Niagara, awarding the plaintiff damages of $3.75 million (reduced down to $2.7 million).   The Appellate Division, Fourth Department would not set aside the jury verdict based on the Garlock’s lack of knowledge of the agreement, concluding that, absent collusion, the failure to disclose the agreement did not mandate reversal.

Aren’t there basic issues of fairness involved here?  Wasn’t there an impermissible ex parte communication when the plaintiff and Niagara informed the trial judge of the agreement?  Wasn’t Garlock at a disadvantage given it had a co-defendant sitting at the defense table that had a lot less to lose than Garlock?  Should the jury have been instructed about the agreement?

Thank you to Mike Hutter for bringing this appeal to my attention.