LLP - iapps.courts.state.ny.us

DEYBLLP

July 27, 2018

VIA FEDERAL EXPRESS

The Honorable Richard T. Aulisi

Supreme Court of the State of New York

Fulton County Courthouse

223 West Main Street

Johnstown, NY 12095

Re: Lynn M. Lockwood as Executrix for the Estate of Kathryn F. Mohl v. A.O. Smith

Water Products Co., et al.

3JDAL Albany County, Index No.: 901530-15

Dear Justice Aulisi:

On behalf of defendant Gould Electronics Inc. ("GEI")', we respectfully submit this letter

application for the following in limine motions in the above referenced case. GEI also adopts

any motion in limine made by any other defendant which may be pertinent to GEI.

E!!£ls

Plaintiff Lynn M. Lockwood seeks to recover for personal injuries sustained by decedent

Kathryn Mohl due to decedent's alleged secondary, take-home exposure to asbestos from 1978

to the early 1990s. Plaintiff alleges decedent was secondarily exposed to asbestos at home from

laundering her husband Clyde Mohl's work clothes. Plaintiff claims that, as a result of Mrs.

Mohl's exposure to asbestos, she was diagnosed with mesothelioma on approximately January

14, 2015 and passed away on March 30, 2015.

Mrs. Mohl passed away prior to being deposed.

The deposition of Mr. Paul Hoffman, the former co-worker of Mrs. Mohl's deceased

husband, was conducted over the course of one day, on November 2,2016.22016. During the

deposition, Mr. Hoffman testified that decedent's husband Clyde Mohl worked with and around

I GEI was created in 1990 and did not sell, ship, distribute, contract for, or manufacture electrical products. Plaintiff

Lynn Lockwood herein alleges decedent was secondarily exposed toasbestos-containing dust from laundering her

husband's work clothes, who allegedly worked with electrical equipment purportedly manufactured by"Gould," a

precursor entity with respect to certain products in relation to GEI.2 References to "Hoffman Tr. at____"

at " are to the pages of the transcripts of the discovery deposition testimony of

product identification witness Paul Hoffman.

Darger Errante Yavitz & B!au L.LP

116 East 27th Street.-.hatt'ce!at Park Avenue,.;-",venue, 12th Floo New YorK New York 10016

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Hon. Richard T. Aulisi

Kathryn Mohl: Defendant GEI's motions in limine

July 27, 2018

Page 2

a variety of asbestos containing products as a maintenance supervisor while employed by Garden

Way in Troy, NY. Mr. Hoffman worked with Mr. Clyde Mohl from 1978 until the early 1990s,

approximately 1992, when Mr. Mohl retired. Mr. Hoffman testified that Mr. Mohl worked in the

maintenance shop and in several buildings that were part of the Garden Way facilities,

performing maintenance work and supervising others performing maintenance work. Asbestos

insulated pipes were located throughout the buildings. Mr. Hoffman alleged that Mr. Mohl was

present while work was performed on boilers, pumps and air conditioner units found at buildings

that comprised the Garden Way facilities. Mr. Hoffman further testified that Mr. Mohl

supervised other employees working on disconnect switches, motor feeds and motor controls.

The deposition of Michelle Sullivan, decedent's adult daughter, was taken on September

19, 2017. She testified regarding decedent's mesothelioma diagnosis and decedent's laundrypractices. Michelle Sullivan did not identify any product manufacturers during her deposition.

Legal Standard

Under New York law, only relevant evidence is admissible. Evidence is relevant if it has

any "tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without theevidence."

People v.

Davis, 43 N.Y.2d 17, 27 (1977); see also People v. Aulet, 111 A.D.2d 822, 825 (2d Dept 1985)

(affirming exclusion of evidence as not relevant or probative). In other words, evidence is

relevant and admissible if "it has any tendency in reason to prove the existence of any materialfact."

Am. Motorist Ins. Co. v. Schindler Elevator Corp., 291 A.D.2d 467, 468 (2d Dept 2002).

Relevancy requires that facts should not be submitted to the jury unless logically and legallyrelevant to the issues presented for determination at trial. See id. Thus, irrelevant evidence must

be excluded. Id. Further, under New York law, evidence that may be otherwise relevant is not

necessarily admissible. A court has the discretion to exclude relevant evidence if "its probative

value is substantially outweighed by the danger that it will unfairly prejudice the other side or

mislead thejury."

See People v. Scarola, 71 N.Y.2d 769, 777 (1988).

1. This Court Should Preclude Lay Opinion Testimony that GEI -

Attributable Products Contained Ashestos.

It is a well-established rule that lay witnesses are not permitted to provide opinions on

subject matters beyond the witness's perception. See People v. Creasy, 236 N.Y. 205, 222

(1923) ("[o]pinion evidence is never allowed, except when from the nature of the case the facts

cannot be stated in such a manner as to enable the jury to form an accurate judgment therefrom,

and no better evidence than such opinions is obtainable").obtainable"

Any opinion testimony regardingwhether a product did or did not contain asbestos should be limited to the

parties'expert

witnesses.

Mr. Hoffman testified that when others were working on motor feed boxes, Mr. Mohl

may have been exposed to asbestos from his work supervising others removing and replacing

asbestos-containing insulation plates in the equipment. Tr. 242:13-24. Mr. Hoffman testified that

exposed to asbestos others onMr. Mohl may have been from supervising working disconnect

material.

"'Bakelite'



July 27, 2018

Page 3

switches with asbestos-containing insulation blocks. Tr. 259:12-24.. Mr. Hoffman testified he

had no formal training in identifying asbestos-containing materials. Tr. 264:6-8. Mr. Hoffman

testified that he learned through trade magazines and a lot of talk about abatement that these

materials contained asbestos. Tr. 264:15-22.

As Mr. Hoffman's opinion lacks any scientific knowledge or specific product

composition information, there is no legitimate basis on which he could conclude that the alleged

Gould electrical products Mr. Mohl worked in the vicinity of contained asbestos.

2. This Court Should Preclude Any Testimony Offered by Plaintiff That"Bakelite" Contained Asbestos.

GEI anticipates that Plaintiff will seek to introduce evidence purporting or tending to show

that because Mr. Clyde Mohl was allegedly exposed to dust from"bakelite"

in electrical

equipment, decedent was secondarily exposed to asbestos dust from the equipment while

laundering Mr. Mohl's work clothes. While GEI never manufactured"bakelite"

or"bakelite"

products, Mr. Hoffman alleged that electrical equipment Mr. Mohl encountered contained"bakelite"

or a"bakelite" material.3

To the extent"bakelite"

refers to the trade name of a product,

more often than not that product did not contain asbestos This testimony should be precluded

because (1) Mr. Hoffman admitted that he was using bakelite as a generic term, descriptive of a

stiff, early plastic material; and (2) Mr. Hoffman did not have personal knowledge of whether the

bakelite to which he referred contained asbestos.

A."Bakelite" is a generic term and may not refer to an asbestos-containing

product.

Most of the material commonly referred to as"bakelite"

did not contain asbestos. While

at one time"Bakelite"

was a registered trademark of Union Carbide (see 55 Fed Reg 5I57-58

[I990]), even the majority of"Bakelite"

manufactured by Union Carbide did not contain asbestos.

See 55 Fed Reg 5157-58 [1990]. Moreover, the term bakelite has long since ceased to refer to a

particular product manufactured by any particular entity and has been widely used as a generic

term, similar to the way the word"kleenex"

is used today to refer to all facial tissue generally, not

in reference to a particular manufacturer or brand.

There are innumerable references in technical and popular literature establishing that

bakelite is a generic term for a resin, plastic-like material. For instance, in Plastic and Synthetic

Rubbers, the authorsnote:'"Bakelite'note: became a household word in the years after the 1914-18 war

and was applied indiscriminately to any material which looked as if it might be made of synthetic

3 Mr. Hoffman testified that he believed the Gould electrical equipment at Garden Way contained a material that hetestified was

"bakelite." See Hoffman Tr. at 382:4-1 1; 735:18-23. He testified that he was not referring to a brandname when he used the term "bakelite," but that he was using the term in a generic sense to refer to a hard, plastic

insulating material. See Hoffman Tr. 144:12-21; 288:21-24, He stated that he was told bakelite contained asbestos.See Hoffman Tr. l44:2-7.


Kathryn Mohl: Defendant GEI's motions inlimine

July 27, 2018

Page 4

resin."See Plastic and Synthetic Rubbers. Likewise, the authors of Plastics state: "The first

synthetic resinoids of this type were given the name Bakelite, and it is a tribute to the rapid

expansion of these products that to the great mass of people all over the world they stand as a

synonym forplastics."

See Plastics. The scientific community continues to use the term bakelite

generically. Id. Even today, plastic synthetic resins are commonly referred to as bakelite, a generic

term.

The constituent ingredients of"bakelite"

insulating material, and whether one piece of"bakelite"

did or did not contain asbestos, are not areas of common knowledge. Mr. Hoffman

did not state that there was a name or the words"Bakelite"

anywhere on the bakelite material

encountered in electrical equipment. See Hoffman Tr. at 288:25-289:3. Without actually testingthe material he referred to as

"bakelite,"Mr. Hoffman would not be able to determine whether

the"bakelite"

components allegedly encountered in the GEI-attributable products actuallycontained asbestos. As such, it is impossible to determine whether any of the dust Mr. Mohl mayhave encountered in conjunction with electrical equipment did, in fact, contain asbestos.

Therefore, Plaintiff cannot proffer testimony that the Gould electrical equipment Mr. Mohl

worked in the vicinity of contained an asbestos-containing bakelite.

When, as here, the term"bakelite"

is being used generically, it would be impossible for

anyone to conclude, without more, that it contained asbestos. Moreover, Mr. Hoffman admitted

he did know if any of the bakelite he encountered actually contained asbestos. Therefore, any

testimony or evidence offered by Plaintiff to show that the bakelite Mr. Mohl may have allegedlyencountered contained asbestos must be precluded.

3. This Court Should Preclude Expert Opinion Testimony Regarding "SpecificCausation" as it Relates to Any GEI-Attributable Product.

Under settled Court of Appeals law "[i]n toxic tort cases, an expert opinion on causation

must set forth (1) a plaintiff's exposure to a toxin, (2) that the toxin is capable of causing the

particular injuries plaintiff suffered (general causation), and (3) that the plaintiff was exposed to

sufficient levels of the toxin to cause such injuries (specificcausation)."

Sean R. v. BMW ofNorth America, LLC, 26 N.Y.3d 801, 808 (2016), citing Parker v. Mobil Oil Corp., 7 N.Y.3d

434, 448 (2006); accord Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014);

Juni, 148 A.D.3d 233, 236.

In Parker, supra, the Court of Appeals established that in a toxic tort case an expert

opinion is lacking in foundation and is inadmissible if it does not provide a "scientificexpression"

quantifying the amount of exposure to establish that the exposure was sufficient to

be a contributing cause of the disease. Accord, Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d

762 (2014).

Recently the First Department confirmed that Parker and its progeny applied in the

asbestos context. Juni v. A.O. Smith Water Products Co., 148 A.D.3d 233 (lst Dept 2017)("Juni"). In Juni, the plaintiff claimed he was exposed to asbestos from dust created from his

work over years with brakes, clutches, and manifold gaskets on Ford Motor Company vehicles.

Inld. Juni, Dr, Jacqueline Moline, the plaintiffs expert in internal medicine and occupational



July 27, 2018

Page 5

and environmental science, asserted, inter alia, that the plaintiff's "cumulative exposures to

asbestos caused hismesothelioma."

Id. Dr. Steven Markowitz, an internist, occupational

medicine specialist and epidemiologist, opined that "chrysotile in friction products, if it becomes

airborne and inhaled, can cause malignantmesothelioma."

Id. at 235-36.

Following trial, a jury returned a verdict for the plaintiff, but the trial court granted Ford's

motion to set it aside. Id. Agreeing with the trial court, the First Department held that these

opinions were insufficient to establish causation for the plaintiff's mesothelioma, and reiterated

Parker and Cornell's requirement that a plaintiff must establish "some scientific basis for findingof causation attributable to the particular defendant's

product."Id. at 237. As the Court wrote,

"plaintiff was obliged to prove not only that Juni's mesothelioma was caused by exposure to

asbestos, but that he was exposed to sufficient levels of the toxin from his work on brakes,

clutches, or gaskets, sold or distributed by defendant, to have caused hisillness,"

and that the

plaintiff had failed to satisfy this standard. Id. at 233-34.

Citing Sean R., the Juni court cautioned that "[th]e fact that asbestos, or chrysotile, has

been linked to mesothelioma, is not enough for a determination of liability against a particular

defendant; a causation expert must still establish that the plaintiff was exposed to sufficient

levels of the toxin from the defendant's products to have caused hisdisease."

Id. at 234.

"Causation from exposure to toxins in a defendant's product must be established through some

scientific method, such as mathematical modeling based on a plaintiffs work history, or

comparing the plaintiffs exposure with that of subjects of reportedstudies."

Id.

Applying Parker, the Juni court explicitly held that the testimony in all ways

indistinguishable from that to be offered by Dr. Zhang and Dr. Ginsburg, that exposure to eachdefendants'

product was a substantial contributing cause of the disease because it contributed to

the cumulative total, was inadmissible. As the court wrote:

(1) Cumulative Exposure: "The trial court also correctly declined to adopt plaintiffs

theory of cumulative exposure to support the verdict... reliance on the theory of

cumulative exposure, at least in the manner proposed by plaintiff, is irreconcilable

with the rule requiring at least some quantification or means of assessing the amount,

duration, and frequency of exposure to determine whether exposure was sufficient to

be found a contributing cause of thedisease."

Juni, 148 A.D.3d at 239 (citing Parker,7 N.Y.3d at 449).

(2) A Consensus as to Low Dose: "The dissent references a 'consensus from the medical

and scientific communities that even low doses of asbestos exposure, above that in the

ambient environment, are sufficient to causemesothelioma.' We do not agree that the

existence of any such consensus entitles a particular plaintiff to be awarded judgment

against a particular defendant by merely establishing some exposure to a product

containing any amount ofasbestos."

Juni, 148 A.D.3d at 239; Accord, Pistone v.

American Biltrite, Inc. Index No. 607637/2015 (Sup. Ct. Nassau Co. April 18, 2018).

Trial courts in the Second Department, applying Parker and Juni, also have rejected so-

called expert testimony that attempted to prove causation based on the theory of cumulative

exposure to low doses of asbestos.



July 27, 2018

Page 6

In Novello v. American Honda Motor Co., Inc., et al., Index No. 607229/2015 (Sup. Ct.

Nassau Co. August 2, 2017), the court granted reconsideration to its order denying summaryjudgment and, applying Juni, reversed itself and granted summary judgment on the ground that

plaintiff's theory of cumulative exposure did not comply with the requirement to provide some

quantification or means of assessing the exposure to each individual defendant's product and

showing that the exposure was sufficient to cause the disease. The court wrote:

Prior to Juni, the potential to establish causation could exist despite

inability to quantify exposure. Based upon the holdings of the Court

in Juni, Plaintiffs in the instant matter have not put forth expert

opinions that have the potential to establish causation as required

inasmuch as it now stands for the proposition that "reliance on the

theory of cumulative exposure... is irreconcilable with the rule

requiring at least some quantification or means of assessing the

amount duration, and frequency of exposure to determine where

exposure was sufficient to be found a contributing cause of thedisease."

Absent some quantification or means of assessing the

exposure to each individual Defendant's product, the foundation forPlaintiffs' experts'

opinions regarding causation is lacking and

therefore legally insufficient.

Id at 3-4.

Similarly, in Pistone v. American Biltrite, Inc., the trial court also held that the theory of

cumulative exposure was inadmissible in an asbestos case. In that case, Dr. Moline opined that

the plaintiff's exposure to asbestos at her father's work sites and to his clothing at home can

cumulatively lead to an increased risk of mesothelioma, without regard to the product, fiber type

or the capability of a specific fiber to cause thedisease."

The court found that this opinion was

not sufficient to forestall the entry of summary judgment, as Dr. Moline had not "demonstrated

that the plaintiff was subjected to adequate amounts of mesothelioma causing asbestos from

either of the defendant's products to cause her disease. Suffice to say, the plaintiffs have clearlynot met their burden via the opinion of Dr. Moline, either. She has provided no evidence that

either of thedefendants'

products contained asbestos which causes peritoneal mesothelioma nor

has she demonstrated that the plaintiff was subjected to adequate amounts of mesothelioma

causing asbestos for either of the defendant's products to cause herdisease."

Id. at 23.

Thus, this Court should reject as a surrogate for quantification the "any exposure/each

and every exposure/cumulativeexposure"

theories because they are not expressions of dose and,

separately, these theories concede that certain low-level exposures are not substantial in and of

themselves (i.e., background and below background), and can only be deemed potentiallycausative when cumulative with other exposures. This reasoning, of course, is not scientific or

reproducible, and is easily confusing to a juror trying to understand causation.

This Court should preclude Plaintiff's experts from testifying as to specific causation

because their opinions nowhere address the specific causation question as to GEI, i.e., whether

decedent's secondary take home exposure to asbestos-containing dust from products attributable

caused mesothelioma. areto GEI was sufficient to have her PiaintifFs expert reports no more


Kathryn kohl: Defendant GEI's motions in limine

July 27, 2018

Page 7

than opinions touching on general causation; i.e., that asbestos exposure causes mesothelioma

and that Mrs. Mohl's mesothelioma was caused by her secondary take home exposure to

asbestos, but they are utterly lacking in a "scientific expression of plaintiff's exposurelevel"

as

required by Parker as they do not quantify or otherwise provide a scientific expression to

provide a foundation for the opinion that Mrs. Mohl's exposure levels to a GEI-attributable

product were sufficient to have caused her injury. The opinions of Plaintiff's experts here,

which assert that each exposure to asbestos "contributed to the cumulativedose,"

are exactly the

same as those found to be insufficient under Parker by the Juni court. As a result, this Court

should preclude Plaintiff's experts from offering an opinion on specific causation.

A. Testimony as to "Cumulative Exposure" Must be Precluded.

Plaintiffs expert reports by Dr. David Zhang and Dr. Mark Ginsburg do not provide a

scientific expression of quantify decedent's exposure to asbestos in general or her exposure to

asbestos in GEI-attributable products specifically sufficient to provide a foundation for anyconclusion that exposure caused decedent's mesothelioma. The expert opinions state no more

than that the cumulative exposure to any defendant's products was a substantial contributingfactor in causing decedent's disease, a formulation which does not approach the requirements set

forth in Parker and Juni.

To the extent Plaintiff's experts will opine that decedent developed mesothelioma as a

result of her cumulative secondary, take-home exposure to asbestos, or that each and everyexposure to asbestos is a substantial factor in causing mesothelioma, including the mesothelioma

suffered by decedent, this Court should preclude such testimony. As is shown below, under the

law of this State, this kind of testimony does not provide a sufficient foundation to proffer an

opinion regarding causation in a toxic tort case because it does not sufficiently show that

exposure to any particular defendant's product was a substantial contributing factor in causingthe decedent's disease. Nonetheless, in his report, Dr. Zhang explicitly adopts the cumulative

exposure theory of causation, as he writes: "In this context Mrs. Mohl's cumulative exposure to

asbestos was a substantial contributing factor in the development of her malignant mesothelioma.

Additionally, the cumulative exposure to each company's asbestos-containing products with

visible asbestos dust significantly contributed to the development of her malignantmesothelioma."

Plaintiff's expert Dr. Ginsburg stated in his report: "... that Ms. Mohl's

cumulative exposure to asbestos was a substantial contributing cause of her malignantmesothelioma."

Dr. Ginsburg further opined that "... the cumulative exposure to asbestos from

each company's asbestos product or products was a substantial contributing factor in the

development of Ms. Mohl's malignant mesothelioma anddeath."

The opinions of Plaintiff's experts here, which assert that each exposure to asbestos

"contributed to the cumulativedose,"

are exactly the same as those found to be insufficient under

Parker by the First Department in Juni, and by the Novello and Pistone trial courts located in the

Second Department, and must be precluded.



July 27, 2018

Page 8

4. This Court Should Preclude Evidence of Regulatory Materials and

Public Health Pronouncements Regarding Potential Adverse Health

Effects From Different Types of Asbestos Fibers.

Plaintiff's counsel and their witnesses, including testifying experts, typically attempt to rely

on pronouncements by organizations such as OSHA, EPA, NIOSH, IARC, the WHO, and/or the

IPSC to support the theory that chrysotile caused decedent's disease. Plaintiff should be

precluded from referring to or relying on any of these types of regulatory materials or public

health pronouncements regarding potential adverse health effects from different types of asbestos

fibers during trial of this action because, inter alia, i) these materials reflect policy decisions

based on the "precautionaryprinciple,"

and do not constitute valid scientific evidence of

causation as required by Parker, supra; and, ii) they are hearsay as to which no exception

applies. See e.g., In re Eighth Judicial Dist. Asbestos Litig., 576 N.Y.S.2d 757 (Sup Ct. Erie Co.

1991) (excluding EPA's Final Rule on asbestos as hearsay, noting that the document did not

qualify for the public records exception). Moreover, evidence from these regulatory and public

health pronouncements is far more prejudicial than probative, especially when such

pronouncements are discussed by Plaintiff's scientific experts. See e.g., Betz v. Pneumo Abex,

LLC, 44 A.3d 27, 53 (Pa. 2012) (recognizing "the influential nature of expert testimony on

complex subjects, and the potential that distortions have to mislead laypersons.")

5. This Court Should Preclude Any State-of-the-Art Evidence Against GEI That Post-

Date Decedent's Exposure Period.

Any documentary or testimonial state-of-the-art evidence that postdates the relevant time

period relating to GEI should be deemed inadmissible and precluded as to defendant GEI.

Plaintiff's expert witnesses disclosures do not specify experts capable of testifying regarding

state-of-the-art, but reference prior disclosures in other cases, which have included: Dr. Barry

Castleman, Dr. David Rosner, and Dr. Gerald Markowitz. In the instant case, Plaintiff asserts

causes of action for both negligence and strict liability. The basis for Plaintiff's claims is an

alleged failure to warn. To establish their claims, Plaintiff must prove that a defendant knew, or

by the exercise of reasonable care should have known, of the potential danger, and in the

reasonable course of its business, should have been able to foresee the possible uses of its

product, as well as the potential injury that might result from such use. See Lancaster Silo &Block Co. v. Northern Propane Gas Co., 54 AD.2d 820 (4th Dept 1980).

Under New York law, the duty to warn is commensurate with the state-of-the-art at the

relevant time. See Bichler v. Willing, 58 A.D.2d 331 (lst Dept 1977). In the Fourth Department

case of Bolm v. Trumph Corp., 71 A.D.2d 429 (4th Dept 1979), the court held that it was an error

to receive into evidence post-accident studies, safety tests, and testimony where the plaintiff did

not first establish that such post-accident studies and tests were within the state-of-the-art at the

time of the manufacture. Id. at 975. Furthermore, in In Re Eighth Judicial District Asbestos

Litigation, the court held that portions of United States Environmental Protection Agency's

rule onasbestos"

(hereinaAer was not admissible an asbestos matter. In(EPA) "final"Rule"

) in



July 27, 2018

Page 9

Re Eighth Judicial District Asbestos Litigation, 152 Misc.2d 338 (Sup. Ct., Erie County 1991).

The Rule was promulgated in 1989 and the plaintiff's alleged exposure to asbestos occurred prior

to that time. The court stated that the Rule was "simply too late in the chain of events to be

helpful to the trier of fact in proving or disproving a material fact at issue herein". Id. at 760.

Similarly, in the case at bar, any state-of-the-art documents, literature, or testimony published

subsequent to relevant time period at issue against GEI are not relevant to the actual events in the

case, are devoid of evidentiary value, and have no bearing on state-of-the-art knowledge as it

existed during the relevant time frame.

6. This Court Should Preclude Any Evidence Regarding Subsequent Remedial

Measures

Mentioning, referencing, or introducing evidence of any subsequent remedial measures or

actions is improper because such evidence is not admissible on the issues of negligence or

culpable conduct in connection with the event. Evidence of subsequent measures is also not

relevant on the issue of gross negligence. Dusenbery v. U.S., 534 U.S. 161, 172 (2002).

Evidence of GEI's knowledge and conduct taking place after Mrs. Mohl was allegedlyexposed to GEI-attributable products is wholly irrelevant to the disputed issues in this case.

People v. Davis, 43 N.Y.2d 17, 27 (1977) (under New York law, only relevant evidence is

admissible, and relevant means "evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence") (citations omitted); see also People v. Scarola, 71 N.Y.2d 769

(1988); People v. Alvino, 71 N.Y.2d 233 (1987). Such evidence has no bearing on the relevant

inquiry, namely, what GEI knew or did, including what warnings it provided, during the time

when decedent allegedly experienced secondary, take home exposure to GEI-attributable

products. Evidence outside the scope of that pertinent exposure period is unconnected in any

way to Plaintiff's allegations against GEI, and it does not have the tendency to prove or disprove

any material fact at issue. On the basis of relevancy alone, evidence post-dating decedent's

alleged secondary, take home exposure to GEI-attributable products should be excluded prior to

trial.

Even assuming such evidence is relevant, which it clearly is not, it should nevertheless be

excluded under New York law. It is well-established that relevant evidence may be excluded if

"its probative value is outweighed by the danger that its admission would prolong the trial to an

unreasonable extent without any corresponding advantage; or create substantial danger of undue

prejudice to one of theparties."

Davis, 43 N.Y.2d at 27 (citations omitted). Relevant evidence

may also be excluded when the probative value is outweighed by the danger that it will mislead

the jury. Scarola, 71 N.Y.2d at 777 (citations omitted). Admitting evidence of GEI's knowledge

and conduct taking place after decedent was allegedly secondarily exposed at home to Gould

products would lead to unnecessary and distracting litigation over irrelevant matters. Further,

interjection of disputes over what GEI did or knew after the date of decedent's last alleged

exposure would naturally lead to juror confusion and prejudice against GEI. Jurors could not be

expected to exclude from their minds allegations about what GEI allegedly did or knew after the



July 27, 2018

Page 10

date of decedent's last alleged secondary exposure at home in rendering a verdict, although such

evidence would be clearly irrelevant.

7. This Court Should Preclude Plaintiff's State-of-the-Art Experts From InterpretingMedical Articles and Scientific Literature.

Whoever testifies as Plaintiff's state-of the art expert should be precluded from

interpreting medical articles and scientific literature at trial. In Celotex Corp. v. Tate, 797 S.W.2d

197, 202 (Tex. Ct. App. 1990), the court granted defendant's motion to limit Dr. Castleman's

testimony to matters concerning existence of medical articles, as distinguished from testimony

concerning interpretation and contents of those articles). Dr. Rosner is considered a historian

who has compiled printed materials allegedly relating to the hazards of asbestos exposure datingback to the late nineteenth century and purports to offer opinions about the meaning of those

documents. Such opinions are not the proper subject of expert testimony because the jury is

capable of interpreting the same documents on their own. These experts should also be precluded

from testimony about any individual defendant's state of mind. In Threadgill v. Manville Corp.

Asbestos Disease Compensation Fund 928 F.2d 1366 (3d Cir. 1991), the appellate court affirmed

the trial court's decision, holding that Dr. Castleman improperly testified that a corporation

fraudulently concealed its knowledge of asbestos hazards.

8. All Evidence Pertaining to GEI's Financial Condition Should be Excluded from the

First Phase of Trial.

This court should preclude any and all evidence pertaining to GEI's financial condition.

Such evidence is only admissible in the punitive damages phase of a trial. See Prior v. Brown

Transport Corp., 103 A.D.2d 1042 (4th Dept 1984) (holding that evidence of defendant's wealth

is irrelevant until plaintiff obtains special verdict entitling plaintiff to punitive damages);

Varriale v. Saratoga Harness Racing, Inc., 76 A.D.2d 991, 992 (3d Dept 1980). The punitive

damages issue cannot be presented to the jury during the first phase of this trial, however.

Bifurcation of the punitive damages phase of a trial is required in order to avoid any undue

prejudice during the liability phase. Tillery v. Lynn, 607 F. Supp. 399, 403 (S.D.N.Y. 1985)

(ordering bifurcation of punitive damages "in the interest of justice and to avoid any undue

prejudice during the liability phase.").

Moreover, bifurcation is required in order to preclude an evidence of a defendant's

wealth or financial condition. The underlying rationale behind this rule is that a defendant's

financial condition might taint the jury's determination of the underlying liability case and the

issue of malice. See Rupert v. Sellers, 48 A.D.2d 265, 272 (4th Dept 1975) ("Defendant's wealth

should not be a weapon to be used by plaintiff to enable him to induce the jury to find the

defendant guilty of malice, thus entitling plaintiff to punitive damages. To avoid such possible

abuse, we conclude that the split trial procedure should be used ..."). Thus, the well-settled rule

in New York is that "evidence of fa] defendant's wealth [can] not be brought out upon trial

unless and until the jury [brings] in a special verdict that plaintiff is entitled to punitive damages



July 27, 2018

Page 11

againstdefendant."

Rupert, supra; Prior, supra; and Varriate supra. Accordingly, in the event

that the Court should find that Plaintiff is entitled to submit evidence in furtherance of a punitive

damages claim, such a claim should be bifurcated and evidence related to GEI's financial

condition should be excluded from the first phase of trial.

9. This Court Should Admit Deposition Transcripts and Interrogatories of All Article

16 Fault Sharers, and all Evidence Adduced by Plaintiff Against Absent Defendants.

Pursuant to the CPLR, discovery served by other entities is admissible to prove the

liability of Article 16 fault sharers. CPLR 3131 provides that answers to interrogatories may be

used at trial 'to the same extent as the depositions of aparty."

In 1997, CPLR 3117 was amended

to add language clarifying that deposition testimony is admissible at the request of a party who

was adverse to the deponent as of the date of the deposition or who is adversely interested when

the deposition is offered into evidence. Furthermore, CPLR 31I7[a][2] was specifically amended

to clarify that such discovery is admissible at trial even after a defendant has settled the case. See

Mem. Of Assembly Rules Comm., Bill Jacket, L 1996, ch. 117. CPLR 3I17[a][2] now provides

that:

"the deposition testimony of a party or of any person who was a

party when the testimony was given or of any person who at the time

of the testimony was given was an officer, director, member,employer or managing or authorized agent of a party, may be used

for any purpose by any party who was adversely interested when the

deposition testimony was given or who is adversely interested when

the deposition testimony is offered inevidence."

The prior deposition testimony and interrogatory responses under CPLR 3131 of a

defendant who settles before trial is therefore admissible for any purpose by any party. The

deposition testimony and interrogatories of any parties including Article 16 entities taken in

other related cases should be admissible, as the Plaintiff here shares a unity of interest withplaintiffs'

with alleged asbestos exposures. New York City Asbestos Litigation CoordinatingJustice Manuel Mendez has ordered that admitting interrogatory responses and deposition

testimony of Article 16 defendants, specifically settled parties, is the most efficient way to

address Article 16 issues at trial. See Gallen v. Aerco International, Inc, et al., Index No.

190343/2015 (Oct. 12, 2017). A similar position on the admissibility of Article 16 deposition

testimony and interrogatory responses was reached by the Hon. Lucy Billings, J.S.C. in a

decision pertaining to two New York City Asbestos Litigation cases: Deane v. John Crane Inc.,

Index No. 190284/2015 (Sept. 29, 2017) and Figueroa v. John Crane Inc., Index No.

190101/2017 (Sept. 29, 2017). The jury here will be provided with a better understanding and

more accurate depiction of Plaintiffs true asbestos exposures, both in quantity and quality, rather

than those exposures that Plaintiff's counsel chooses to emphasize at trial with the discoverymaterials admitted. Most importantly, these materials are relevant to determining which

products, if any, caused PlaintifFs disease. GEI will be prejudiced if Plaintiff is able to ignore



July 27, 2018

Page 12

and suppress evidence which, by their acceptance of the settlement, demonstrates that an entitywas responsible for harms suffered by the Plaintiff.

GEI also asserts that in an instance in which Plaintiff has identified a discovery response,

transcript, or other document of a fault sharer in his/her pretrial disclosures, then there can be no

later complaint that the discovery is unreliable. In Bigelow v. AC and S. Inc.. 196 A.D.2d 436

(lst Dept 1993), the Court rejected the use of discovery of settled parties, but permitted the use

of a transcript because Plaintiff had identified it in his discovery response. As such, this court

should allow admission of deposition transcripts and interrogatories of all article 16 fault sharers.

Further, should GEI be found liable by the jury after the trial, the jury should be allowed

to consider the evidence that Plaintiff has presented with regard to absent defendants to whose

products plaintiff was exposed. See Marsala v. Weinraub, 208 A.D.2d 689, 697 (2nd Dept 1994)("("Once there is a factual finding that more than one jointly liable tortfeasor has culpability, the

parties asserting several liability status must prove that their proportionate share of responsibilityis 50% or less. In meeting this burden, they may properly rely on evidence offered by the

plaintiff, by a defendant, or by other parties in the action.") (Ritter, J.S.C., concurring); see also

Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the

Courts of the State of New York, at p. 47 (January 2003) (agreeing with the concurrence opinion

of Justice Ritter in Marsala with the Committee proposing that "a defendant seeking benefits of

Article 16 should be entitled to rely upon the factual claims pleaded and evidence adduced by the

other parties (including the plaintiff) in those instances in which the defendant chose not to

advance such further claims or proof.") GEI should not be required to put on evidence

potentially adverse to its position on issues, such as state of the art and causation, and thus

undermine its own defense.

Defendant GEI reserves the right to move for other in limine relief by oral application

before and during this trial. GEI additionally reserves the right to join in any motion in limine

filed by a co-defendant.

Respectfully submitted,

Vincent A. Errante, Jr., Esq.

Eric Statman, Esq.

Natalie A. Powers, Esq.

Megan R. McGovern, Esq.

Attorneys for Defendant

Gould Electronics Inc.

cc: Weitz & Luxenberg, P.C. (via first class U.S. mail & NYSCEF)

All Remaining Defense Counsel (via NYSCEF)

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