concurring in part and dissenting in part:
I agree with the majority that the district court’s decision to consolidate Higgins and Johnson was a permissible exercise of discretion, that a reasonable jury could find a causal connection between appellants’ products and plaintiff’s injury, and that there is no basis for reversal in the conduct of the trial court and plaintiff’s counsel. I respectfully dissent, however, from the majority’s conclusion that punitive damages are adequately supported by the evidentia-ry record, and would reverse the award of punitive damages as a matter of law. I accordingly would not reach, and do not join the majority’s consideration of, appellants’ constitutional objections to the imposition of punitive damages.
*1291Our tort law system reserves punitive damages for those extraordinary cases where an extra measure of payment — beyond full compensation for injuries — is thought to be necessary “for the purpose of punishing the defendant, of teaching the defendant not to do it again, and of deterring others from following the defendant’s example.” W. Keeton, D. Dobbs, R. Kee-ton & D. Owen, Prosser and Keeton on the Law of Torts § 2, at 9 (5th ed. 1984). Thus, for example, punitive damages may be deemed appropriate where a defendant, while not intending to injure a plaintiff, exhibits “such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.” Id. at 10. The case before us involves an application of that theory.
As the majority notes, the district court’s jury instruction required a determination that defendant’s conduct was “wanton or reckless” to sustain an award of punitive damages, and this is a correct statement of New York law. As we have said, however, in another diversity case where we undertook a thorough review of the applicable New York precedents, New York law contemplates that “the recklessness that will give rise to punitive damages must be close to criminality, see 14 N.Y.Jur., Damages § 181 p. 41, and ..., like criminal conduct, it must be ‘clearly established.’ ” Roginsky v. Richardson-Merrill, Inc., 378 F.2d 832, 843 (2d Cir.1967) (Friendly, J.). We went on to quote, id., the definition in N.Y.Penal Law § 15.05(3) (McKinney 1987), since unchanged, as setting forth New York’s view of recklessness. Section 15.-05(3) provides in pertinent part:
A person acts recklessly with respect to a result ... when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur.... The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
I do not regard the evidence in this case as adequate for submission of punitive damages to the jury under these standards. The evidence at trial established that during the time Johnson worked in the Brooklyn Navy Yard, appellants were aware that the properties of asbestos were such that it could, at some level of exposure, injure a human being. From this, it is possible reasonably to conclude that appellants had a duty to warn or otherwise safeguard persons such as Johnson, and must now compensate him for whatever injuries are attributable to their failure to do so. The award of compensatory damages is therefore sustainable, even though Johnson never worked in an asbestos plant, and did not work directly with asbestos-containing products in the Brooklyn Navy Yard. In the circumstances, the jury did not exceed its authority in determining that appellants should have known that Johnson, and others similarly situated, were being put at risk.
Punitive damages, however, are not properly chargeable against a defendant who merely “should have known” of the risk in question. It must be shown that the defendant was aware of the risk, and that he consciously disregarded it. See Roginsky, 378 F.2d at 843 (punitive damages proper where manufacturer shown “to have become aware of danger and to have done nothing, deliberately closing its eyes”). There has been no such showing here. All the evidence to which Johnson directs us relates to actions, correspondence and literature concerning asbestos processing plants, where workers had direct and sustained exposure to high concentration levels of asbestos fibers. This record contains no evidence that either medical researchers or asbestos manufacturers possessed, in the mid 1940s, information establishing, or even predicting, that “bystanders” might experience unsafe levels of exposure in shipyards where finished hardbound insulation products containing asbestos were in use. The award of punitive damages is, therefore, in my view unsustainable.
The majority reasons that the jury could conclude, on this record, “that appellants knew of the dangers of asbestos and did not adequately protect or warn users of asbestos, thereby acting in a wanton or reckless manner.” The majority paints *1292with much too broad a brush, as I see it, in its reference to “the dangers of asbestos.”
The clear implication is that once a product is shown to be dangerous to some persons under some circumstances, punitive damages can be awarded against a manufacturer who fails to anticipate its subsequently discovered propensity to endanger other persons in markedly different circumstances. This is hardly the “recklessness” ... close to criminality” which we described in Roginsky as the standard for awarding ’punitive damages under New York law. As Judge Friendly there said, “error in failing to make what hindsight demonstrates to have been the proper response — even ‘gross’ error — is not enough to warrant submission of punitive damages to the jury.” 378 F.2d at 843.
I therefore respectfully dissent from the majority’s affirmance of the jury’s awards of punitive damages.