FILED: NEW YORK COUNTY CLERK 09/08/ :05 PM INDEX NO /2015 NYSCEF DOC. NO. 442 RECEIVED NYSCEF: 09/08/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X NYCAL IN RE: NEW YORK CITY ASBESTOS LITIGATION I.A.S Part X (Mendez, J.) This Document Relates To: Index No RONEY TEMOR and DIANE TEMOR, October 2015 In Extremis Plaintiff, AIR & LIQUID SYSTEMS CORP., et al., Defendants X This Document Relates To: RANDY C. SCHWARTZ, Index No /2015 April 2016 In Extremis Plaintiff, -against- -against- A.O. SMITH WATER PRODUCTS INC., et al., Defendants X AFFIRMATION IN OPPOSITION TO PLAINTIFF S OMNIBUS MOTION IN LIMINE Ryan W. Sweeney, Esq., an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms: 1. I am associated with the law firm of Mcgivney, Kluger & Cook, P.C., counsel for defendant, Pecora Corporation ( Pecora ), in the above -captioned action. Unless otherwise stated, this Affirmation is made upon information and belief based upon a review of the files maintained in this action. {N }1 1 of 10

2 PRELIMINARY STATEMENT 2. Defendant Pecora Corporation submits this opposition to plaintiff s omnibus motion in limine on behalf of all defendants in these matters. On behalf of all remaining defendants in these matters, the remaining defendants experts should not be precluded as they have been properly disclosed pursuant to CPLR As to plaintiffs motion in limine specific to defendant Pecora, plaintiff is not entitled to an adverse inference jury charge for spoliation of evidence against defendant Pecora, as Pecora has never negligently destroyed any evidence and Pecora has disclosed the furnace cement formula card at issue, as well as furnace cement material safety data sheets. I. Defendants Experts Should Not Be Precluded As They Have Been Properly Disclosed 4. CPLR 3101(d)(1) requires each party to identify each person they expect to call an expert witness at trial and they must disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. CPLR 3101(d)(1). 5. There is no requirement that a party serve an expert report, only that they serve a disclosure [u]pon request. CPLR 3101 (d)(1)(i). Specific to matters in the NYCAL, the In Extremis Discovery Calendar sets the dates for serving expert disclosures. 6. The NYCAL Special Master, Shelley Olsen, has recently affirmed that parties need only serve disclosures and there is no requirement that case specific expert reports be provided. The Special Master s Ruling dated March 21, 2017 in the Richard Hundertmark matter attached as Exhibit A. In the Richard Hundertmark matter, defendant demanded plaintiff s counsel provide expert reports; however, the Special Master ruled plaintiff need not provide an expert {N }2 2 of 10

3 report as the In Extremis Discovery Schedule only mandates Plaintiffs serve expert witness reports or disclosures, including economists, on remaining defendants and plaintiff satisfied this requirement with a disclosure. Ex. A ; the April 2016 Accelerated Trial Cluster Discovery Schedule is attached as Exhibit B. 7. Plaintiff s very argument that they are without any indication as to what defendants experts testimony will be was specifically rejected by the Special Master in the Hundertmark matter as the disclosures more than satisfy that need. See Ex. A. The remaining defendants expert disclosures all disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify as required by the CPLR. See CPLR 3101(d)(1). 8. Despite plaintiffs claim that defendants expert reports were due on October 9, 2015 in the Temor matter and on April 11, 2016 in the Schwartz matter, actually reading the respective In Extremis discovery schedules reveal there is no such requirement. The schedule for the Temor matter provides that by October 9, 2015, Defendants serve exhibit and expert witness list[s] and defense expert reports are not even mentioned in the discovery schedule. The October 2015 Accelerated Trial Cluster Discovery Schedule is attached as Exhibit C (emphasis added). The Schedule for the Schwartz matter provides that by April 11, 2016, Defendants serve expert witness reports or disclosure, including economists, and as the Special Master ruled, this only requires one or the other, not both. See Exs. A and B (emphasis added). 9. By its very terms the discovery schedules in the Temor and Schwartz matters do not require defendants to provide expert reports, only expert disclosures. 10. So long as the disclosure adequately provides in reasonable detail the subject matter on which the expert will testify, his opinion, the facts underlying that opinion, and the {N }3 3 of 10

4 grounds for such opinion, the disclosure complies with the CPLR and defendant need not delineate the precise methodology that the expert used to reach such opinions. The mere fact that plaintiff may have disclosed such information does not impose such a requirement on defendants. See Aitcheson v. Lowe, 2014 N.Y. Misc. LEXIS 6337 *4-5 (Duchess Cnty Sup. Ct. May 19, 2014). 11. In this matter, despite plaintiff s claim that multiple unnamed defendants experts must be precluded from trial, the remaining defendants in these matters are perfectly entitled to call several experts which they included in their expert witness disclosures. Plaintiffs are on notice of these experts and have no basis to preclude them from testifying at trial. 12. To go through the numerous remaining defendants specific expert disclosures would be a waste of judicial resources, but as an example, defendant Pecora s expert disclosures in Temor is attached as Exhibit D and expert disclosures in Schwartz is attached as Exhibit E. Defendant Pecora is therefore entitled to call these experts at trial, as well as the experts disclosed in Pecora s Supplemental Disclosure attached as Exhibit F and Exhibit G. 13. Pursuant to CPLR 3101, the In Extremis Discovery Schedules, and the Special Master s ruling in Hundertmark, the remaining defendants are all entitled to call experts at trial who are included in their disclosures, whether a case specific report has been provided or not. 14. Failure to comply with CPLR 3101(d)(1) only warrants preclusion if there is prejudice and a willful failure to disclose, which plaintiffs cannot establish in these matters as defendants have properly disclosed their experts. McColgan v. Brewer, 84 A.D.3d 1573, 1576, (3d Dept 2011); Mead v. Dr. Rajadhyax' Dental Group, 34 A.D.3d 1139, (3d Dept 2006). 15. Plaintiffs suggested rule would necessarily preclude their own experts. For instance, just in Temor, plaintiff served Dr. Rudick s expert disclosure and report on September {N }4 4 of 10

5 15, 2016, Mr. Garza s report in March of 2017, Mr. Staller and Mr. Markham s expert disclosure and report on July 11, 2016, and Dr. Zhang s report on March 10, These reports would be untimely under plaintiff s rule and therefore would have to be precluded. A copy of plaintiff s expert disclosure of Dr. Rudick is attached as Exhibit G, a copy of plaintiff s expert disclosure of Mr. Garza is attached as Exhibit H, a copy of plaintiff s expert disclosure and report of Mr. Staller and Mr. Markham is attached as Exhibit J, and Dr. Zhang s expert disclosure and report is attached as Exhibit K. 16. Further, the CPLR provides that a party may provide supplemental expert disclosures and the remaining defendants are entitled to rely on the experts disclosed in their supplemental disclosures. See CPLR 3101(h). 17. Pecora, for instance, served an expert report for Mr. Marano on March 2, 2017 and an expert disclosure for Dr. Attanoos on July 25, 2017; therefore, Pecora is entitled to call these experts at the time of trial. See Exs. F and G. The other remaining defendants are also entitled to rely on any experts included in their disclosures or any supplemental disclosures. II. An Adverse Inference Instruction Against Pecora is Not Proper as the Requested Formula Card was Provided to Plaintiff 18. Plaintiff requests an unspecified adverse jury instruction against Pecora for not providing the formula card for Pecora s furnace cement. Strikingly, had plaintiff included the entire transcripts of Pecora s corporate representative Robert Heim as an exhibit, the 1948 furnace cement formula would have been part of plaintiffs moving papers. Just as Pecora s experts have been properly disclosed, Pecora s furnace cement formula card was provided to plaintiff. Second, in Pecora s standard discovery, which plaintiff also included as an exhibit, two material safety data sheets for Pecora s furnace cement from the 1970s and 1980s were included. Therefore, no {N }5 5 of 10

6 adverse inference jury instruction is appropriate as all evidence clearly indicates Pecora s furnace cement contained only 1.25 percent of encapsulated chrysotile fiber. 19. There is no prejudice to plaintiffs who have both the 1948 formula card and the furnace cement material safety data sheets from the 1970s and 1980s. An adverse inference charge is not warranted and plaintiff s motion is entirely moot. 20. Finally, while Pecora does not have access to the missing furnace cement formula card from 1953, it was not due to any negligence on their part, Simply put, Mr. Heim, and the other current officers of the company all started with Pecora around 2003 when the majority of the prior corporate officers retired or passed away, and any loss of documents occurred in that change in management and corporate officers. 21. Pecora s current corporate representative and Vice President, Mr. Robert Heim, and Mr. Albert Kilchesky before him, have both testified that Pecora s furnace cement contained 1.25 percent of chrysotile asbestos. See deposition testimony of Mr. Kilchesky dated August 24, 1994 is attached as Exhibit L, deposition transcripts of Mr. Heim dated March 13, 2015 is attached as Exhibit M, deposition transcripts of Mr. Heim dated August 27, 2015 is attached as Exhibit N, and deposition transcripts of Mr. Heim dated May 1, 2017 is attached as Exhibit O. The 1948 Pecora furnace cement formula card was included as an exhibit in the two most recent depositions and was used in questioning Mr. Kilchesky in Mr. Heim has been deposed several times in the past three years, and he has been questioned about Pecora s furnace cement, the 1948 furnace cement formula card, and the furnace cement material safety data sheets from 1979 and In these depositions each of these documents were made exhibits. See Exs. M, N, and O. Not only are these transcripts {N }6 6 of 10

7 readily available from any court reporting service, they were specifically turned over to plaintiff s counsel upon request on August 11, Plaintiff s argument that they have been prejudiced or deprived of crucial evidence and are forced to rely on self-serving testimony is incorrect, as the formula card has been in plaintiff s possession. Further, Pecora s corporate representatives have been cross examined at length by various plaintiffs attorneys. Indeed, after Pecora provided deposition transcripts to plaintiff s attorneys they agreed there was no need to depose Mr. Heim again. See Plaintiffs Notice Cancelling Mr. Heim s Deposition attached as Exhibit R. 24. In this matter, Mr. Temor alleged exposure to Pecora s furnace cement while living in Michigan from approximately 1974 to Mr. Temor s discovery deposition is attached hereto as Exhibit S 41:17-48:25, 823:9-835:14. Mr. Temor further testified that, he was in New York for a very brief time, approximately three to four months, or a maximum of six months, in where he used Pecora s furnace cement. Ex. S 41:17-44:10, 91:4-102:17, 823:9-835: Plaintiff is not prejudiced in this matter as the furnace cement formula card from 1948 and the material safety data sheets from 1979 and 1986 cover the time period Mr. Temor allegedly used the product. 26. A party seeking sanctions for spoliation of evidence, including an adverse inference, must show that the party having control over the evidence (1) possessed an obligation to preserve it at the time of its destruction, (2) that the evidence was destroyed with a culpable state of mind, and (3) that the destroyed evidence was relevant to the party's claim or defense 1 Plaintiff had only recently sought to depose Mr. Heim, on July 24, 2017, and in response and pursuant to the NYCAL CMO we turned over prior corporate representative trial transcripts. A copy of Plaintiff s Deposition Notice is attached as Exhibit P and a copy of the dated August 11, 2017 from Erin Miter to Joseph Williams with Mr. Heim s deposition transcripts is attached as Exhibit Q. {N }7 7 of 10

8 such that the trier of fact could find that the evidence would support that claim or defense. Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543, 2-3 (2015) ( quoting Voom HD Holdings LLC v. Echostar Satellite L.L.C., 93 A.D.3d 33, 45 (1d Dept 2012). In Pegasus, the Court of appeals agreed with the First Department that a party was not grossly negligent when electronically stored information was destroyed after several inadvertent computer crashes and at a minimum the evidence must have been negligently destroyed. Id. at The party requesting an adverse inference charge must also show that the adverse party has no reasonable explanation for not producing the document. Scaglione v. Victory Memorial Hosp., 205 A.D.2d 520 (2d Dept 1994) (citing PJI 1:77). In Scaglione the Second Department found defendant reasonably excused why they no longer had certain maintenance records; therefore, no jury charge was warranted. Id. 28. In general, a party can defend a charge that they have failed to provide discovery by a reasonable excuse. Jian-Han Guan v. Wilson, 41 Misc. 3d 1202(A) *1-2, (Richmond Cnty Sup. Ct. 2013) (finding no spoliation sanction was appropriate where defendant had reasonable excuse for failing to preserve vehicle involved in car accident). In Read v. Dickson, The Second Department found defendant offered a reasonable excuse for failing to appear for his deposition as he was dealing with a medical emergency. 150 A.D.2d 543, (2d Dept 1989). In People v. Bailey the First Department found no adverse inference charge was required where the State failed to preserve a 911 call as there was no bad faith and defendant was not prejudiced. 24 A.D.3d 106 (1d Dept 2005). 29. Courts have held when defendants make a good faith effort to locate the documents and offer a reasonable excuse for the non-production, specifically including loss of records due to bankruptcy and related personnel changes spoliation sanctions are not {N }8 8 of 10

9 appropriate. Cordero v. St. Vincent's Hosp. & Med. Ctr. of N.Y., 2008 NYLJ LEXIS 34, *7 (N.Y. Cnty Sup. Ct. May 28, 2008). The court further found defendant provided plaintiff with the name of other witnesses who could be deposed on the specific relevant issues. Id. 30. Along those lines, the First Department denied plaintiff s request for sanctions where defendant Hospital lost original medical records and produced a copy, albeit admittedly incomplete and allegedly altered. Further, the plaintiff was not prejudiced as they could still prove their case. Tawedros v. St. Vincent's Hosp. of New York, 281 A.D.2d 184 (1st Dep't 2001). 31. First and foremost, plaintiff is incorrect that the furnace cement card was destroyed, as the 1948 formula card has been provided. There is no basis for a charge of spoliation or for an adverse inference. Pecora s formula card of 1948, Pecora s Material Safety Data Sheet of 1979, and Pecora s Material Safety Data Sheet of 1986, all reflect the minor amount of chrysotile fiber. 32. Further, to the extent the 1953 furnace cement formula card is at issue, Pecora has a reasonable and valid reason as to why it is not available. Pecora s current Vice President Mr. Heim started working for Pecora in See Ex. N 109:9-18. Mr. Heim never met prior senior Pecora officials and former corporate representatives Don King and Albert Kilchesky who were knowledgeable about Pecora s products during the relevant times. Don King, another one of Pecora s corporate representatives retired in 2001 and testified that the Vice President of manufacturing had retired in 2000, and that Mr. Kilchesky had died, also in approximately See Deposition Transcript of Don King dated June 26, 2006 attached as Exhibit T 10:2-17, 24:3-10. Mr. Kilchesky was the officer who had the formula cards which have been unavailable since his passing before Mr. Heim started working for Pecora. As a result of the retirement and deaths of the former officers of Pecora, the company s knowledge of its corporate and product {N }9 9 of 10

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