February 26, 2018 United States Telephone: Honorable Gerald Lebovits, J.S.C. Facsimile:

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1 Clyde & Co US LLP The Chrysler Building 405 Lexington Avenue VIA NYSCEF AND PERSONAL DELIVERY 16th Floor New York, New York February 26, 2018 United States Telephone: Honorable Gerald Lebovits, J.S.C. Facsimile: New York County Supreme Court 60 Centre Street, Room 345 New York, New York Direct Line: Re: New York City Asbestos Litigation Suki Duggan, as Executrix for the Estate of Anthony Duggan and Suki Duggan, as Spouse v. AB Refrigeration Supply Corp., Index No. 19O3O212O15 Henry C. Kranichfeld v. American Biltrite, Inc., Index No /2015 Letter Application - Motions in Limine The Early Law Firm Trial Date: March 19, 2018 Dear Justice Lebovits: Clyde & Co US LLP respectfully submits this letter application for the following in limine motions on behalf of all defendants in the above-referenced matters. 1. Plaintiffs should be precluded from mentioning, criticizing, or objecting to any testimony of corporate witnesses based on a purported knowledge." "lack of personal Defendants seek to preclude Plaintiffs from mentioning, referencing, or introducing evidence "lack" regarding any purported of personal knowledge of corporate witnesses. Any witnesses' challenge to such corporate personal knowledge ignores the fact that such testimony is offered in their capacity as corporate representatives, not as individuals, and, as such, under knowledge" well-settled law, whether the representative has "personal of the subject matter of his testimony is irrelevant. Indeed, as a corporate representative, one is deemed to have personal knowledge of all of the matters on which he is requested or required to testify. The concept of corporate personhood is a well-established legal fiction. See Toren v. Anderson, Kill 8 Glick, 185 Misc.2d 23, 26 (Sup. Ct., New York Cty. 2000). Although a "person," corporation is a the corporation cannot take the stand and offer testimony. Accordingly, the collective knowledge of the corporation must be presented through its authorized agents; in this case, a designated corporate representative. Allowing a plaintiff to challenge the corporate representative on the basis that he or she lacks personal knowledge would render it nearly impossible for any corporation to defend itself in any action. New York persons," law recognizes that unlike "natural corporations cannot give testimony and therefore must act through the designation of authorized representatives. Id. (citing Oliner v. Mid-Town Promoters, Inc., 2 N.Y.2d 63, 64 (1956)). To that end, corporations are required to designate an individual to provide deposition testimony on behalf of the company. See CPLR 3106(d); Casolaro v. World Championship Wrestling, 47 A.D.3d 803 (2d Dep't 2008). Thus, it is Clyde 8 Co US LLP is a Delaware limited liability partnership with offices in Atlanta, Chicago, Long Beach, Miami, New Jersey, New York, San Francisco and Washington D.C. Clyde 8 Co US LLP is affiliated with Clyde 8 Co LLP, a limited liability partnership registered in England and Wales.

2 Febnjan 26, 2018 Page 2 counterintuitive to require a corporation to designate a representative to testify on its behalf, but then to disregard the fact that he or she is testifying in a representative capacity. Indeed, federal courts and numerous state courts have held that in designating an individual as an authorized representative for the purpose of offering testimony, a corporation has an affirmative duty to educate that individual regarding the facts known by the corporation in order to permit inquiry of facts known by the corporation, which, itself cannot be deposed. It is further understood that any such designee is unlikely to have personal knowledge of all of the matters as to which he or she is prepared to testify. Gucci Arn., Inc. v. Exclusive Irnports 99-cv- Int'l., 11490, 2002 WL , *8 (S.D.N.Y. Aug. 12, 2002) (holding that corporation on whose behalf designee is testifying must prepare designee so he or she may provide "knowledgeable and binding answers for the corporation.") see also Wilson v. Lakner, 228 F.R.D. 524, 528 (D. (' Md. 2005) ("There can be no question that [Rule 30(b)(6)] imposes a 'duty to prepare the designee[]... [that] goes beyond matters personally known to the designee or to matters in which that designee was personally involved."'); Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 137, 141 (D.D.C. 1998) (noting that corporate designee need not have first-hand experience regarding subject matter of his or her testimony); United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996); Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. III. 1995) (recognizing duty of corporation to prepare its designee to respond to matters about which designee may not have personal knowledge); Saxon v. Harrison, 186 Md. App. 228, 256 (Ct. Sp. App. 2009); D.R. Horton v. D & S Landscaping, LLC, 215 P.3d 1163, 1169 (Colo. App. 2008); Arnerican Safety Cas. Inc. v. C G. Mitchell Construction, Inc., 268 Va. 340, 342 (2004) ("the designated person gives testimony about the knowledge and memory of knowledge.").' the corporation, not his or her personal As recognized by the court in Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995), the education of a corporate witness is necessary in cases such as the ones at bar in which the claims relate to incidents that happened in the distant past and there are no current ' Similarly, in determining the applicability of the business records exception, CPLR 4518(a), courts do not require that the person who actually created the business record in question provide the testimony authenticating the document in question. "The efficiency of commerce would suffer if all of the employees who participated in a transaction were required to testify in court." Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4518:1 (citing People v Kennedy, 68 N.Y.2d 569, 579, 510 N.Y.S.2d 853, 503 N.E.2d 501(1986)). Rather, the contents of a business record may be authenticated by the testimony of a corporate representative able to testify that: (1) the document providing the information in question is part of the regular course of business; (2) that part of the company's regular business is maintaining records of the type being offered; (3) the record is contemporaneous with the act or occurrence to which it relates; (4) the record was made by one with actual knowledge or was at the very least received from someone within the business with actual knowledge. See Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C 45 I 8:2 (citing People v Kennedy, supra, 68 N.Y.2d 569; Comier v Spagna, 101 A.D.2d 141,475 N.Y.S.2d 7 (1st Dep't 1984); Toll v State, 32 A.D.2d 47, 50, 299 N.Y.S.2d 589 (3d Dep't 1969); Johnson v Lutz, 253 N.Y. 124, 170 N.E. 517 (1930)). Where the corporate representative has sufficient knowledge of corporate policies and procedures to satisfy these elements, the witness may testify regarding the contents of those documents despite the fact that he or she lacks personal knowledge of their subject matter. The comments to CPLR 4518(a) provide that, "[t]he sponsoring witness need not be familiar with the facts contained in the record; it is sufficient that the witness knows the habits records." and customary practices and procedures for the making of such Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C4518:2. Indeed, "[t]here would be little or no purpose to the witness." hearsay exception if the maker [of the record] were a required foundation Id. (citing Napolitano v Branks, 141 A.D.2d 705,529 N.Y.S.2d 42 (1st Dep't 1988) (the actual unavailability of the maker of the record is not a prerequisite to use of the hearsay exception).

3 Febnjary 26, 2018 Page 3 employees of the corporation with knowledge of the relevant information. In such cases, the plaintiffs potentially would be unable to obtain information required to prove their cases. New York federal district courts have recognized that preparing a corporate representative to offer testimony "goes beyond matters personally known to that designee or to matters in which that involved." designee was personally Bank of New York v. Meridien BIAO Bank Tanzania Ltd.,171 F.R.D. 135, 151 (S.D.N.Y. 1997). Accordingly, the corporation is required to prepare its representatives based upon information obtained "'from documents, past employees, or sources.'" other Tailored Lighting, Inc. v. Osrarn Sylvania Prod., Inc., 255 F.R.D. 340, 349 (W.D.N.Y. 2009) (quoting United States v. Taylor, 166 F.R.D. 356, 361, afl'd, 166 F.R.D. 367 (M.D.N.C.1996)). A plaintiff cannot require a corporation to designate and educate a representative to provide testimony regarding products historically manufactured or supplied by the corporation to facilitate that party's litigation against the corporation and at the same time argue "lack of knowledge" personal and seek to preclude that representative from testifying regarding the corporate knowledge he possesses that may be unfavorable to the plaintifl's claim. Surely, neither the CPLR nor the federal rules contemplate such an anomalous and unfair result. For these reasons, any statement or objection Plaintiffs may assert regarding witnesses' corporate lack of personal knowledge is specious and should be rejected by this Court. 2. Certain equipment defendants are not liable for asbestos materials added on by third parties. Under the holding in In re New York City Asbestos Litig. v. A. W. Chesterton (Dumrnitt), 27 N.Y.3d 765, 59 N.E.3d 458, 37 N.Y.S.3d 723 (2016), a "manufacturer of a product has a duty to of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as a matter of design, mechanics or economic intended." necessity, is necessary to enable the manufacturer's product to function as In Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 591 N.E.2d 222, 582 N.Y.S.2d 373 (1992), the court decided the issue of whether a manufacturer has a duty to warn of the hazards that arise when one manufacturer's product is attached to another manufacturer's product. In that case, a truck had a non-defective Goodyear truck tire placed around a defective multi-piece rim assembly, which was designed and built by another company. Goodyear's tire was compatible with the rim assembly at issue and with many, but not all, other manufacturers' rim assemblies. Other than this compatibility, Goodyear had no connection to the rim assembly at issue. The rim assembly exploded when it was filled with air, killing the decedent. The plaintiff claimed Goodyear had a duty to warn of the potential risk associated with the defective rim. The court cited a number of significant circumstances of the case, including the following: (1) "Goodyear had no control over the production of the subject multipiece rim"; (2) Goodyear "had no role in placing that rim in the stream of commerce"; (3) Goodyear "derived no benefit from [the rim's] sale"; and (4) "Goodyear's tire did not create the alleged defect in the rim that caused the rim to explode." The court held "[t]hus, we conclude that Goodyear had no duty to warn about the use of its tire with potentially dangerous multipiece rims produced by another where Goodyear did not contribute to the alleged defect in it." a product, had no control over it, and did not produce Id. at 79 N.Y.2d at 298.

4 Febnjary 26, 2018 Page 4 New York courts have drawn a clear line in such cases: a component part manufacturer will not be held liable for failing to warn of a product it did not manufacture, supply, or place into the stream of commerce or receive economic benefits for. Furthermore, where there is no evidence that a manufacturer had an active role, interest, or influence in the types of products to be used in connection with its own product after it is placed into the stream of commerce, that manufacturer has no duty to warn. 3. experts should be precluded from presenting at trial any evidence or oral testimony expressing the legally invalid opinion that exposure" "each and every to asbestos sustained by an individual contributes to the cause of a later diagnosed asbestos-related disease. Defendants seek to preclude any opinion offered by experts that "each and every exposure" "cumulative" to asbestos, a general or exposure to asbestos, "substantial exposure asbestos" shown" to or that "each such product for which exposure can be was a substantial factor in causing Plaintiff s disease. The methodology underlying the "each and every exposure" opinion is not accepted in the scientific community and not scientifically valid, and as such should be excluded from trial. See Frye v. United States, 293 F (1923); Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 793 N.Y.S.2d 434 (2006); Comell v. 360 W 51st St. Realty LLC, 22 N.Y.3d 762 (2014). New York courts do not find these types of opinions legally sufficient for admission as expert evidence. Most recently, in Juni v. A.O. Smith Water Products Co., 148 A.D.3d 233 (1st Dep't. 2017)2, the Appellate Division affirmed the trial court's decision to set aside the jury's verdict for plaintiff by applying the relevant standards from Frye v. United States plaintiffs' and Parker v. Mobil Oil Corp. Junireiterated that expert causation witnesses must set forth (1) that plaintiff was exposed to asbestos from an individual defendant's product, (2) asbestos is capable of causing the particular injury plaintiff is alleging, and (3) plaintiff was exposed to sufficient levels of asbestos from an individual defendant's product to cause such injury. See Id. The First Department in Juni further held that exposure must be quantified to the extent necessary to establish sufficient exposure to a substance alleged to have caused the asbestos-related disease. Id. The Junicourt also reconfirmed Sean R. v. BMW of N Am., LLC, 26 N.Y.3d 801 (2016), by ruling that the fact that asbestos generally has been linked to mesothelioma is not enough to support a determination against a specific defendant. /d. Therefore, experts "each and every exposure" opinions, which fail to quantify any level of exposure to a specific defendant's product, are insufficient to establish general or specific causation and must be precluded. In the alternative, defendants request a full Frye hearing to determine the admissibility of expert witness testimony. 4. Defendants seek to preclude experts not properly disclosed or whose opinions are without proper foundation. Defendants object to any witness being permitted to testify whose opinions have not properly been disclosed or whose opinions lack a proper foundation. Attached as Exhibit A is a copy of the original expert disclosure. Defendants object to the designation of Steven Paskal. Although a general CPLR 3101(d) disclosure was provided, no case specific report was provided in the Duggan case until January 29, 2018 (attached as Exhibit B) and no case- The Court of Appeals has recently granted leave to appeal.

5 Febnsy 26, 2018 Page 5 specific report was provided at all in the Kranichfeld case. Thus, defendants contend that this disclosure is inadequate and he should not be permitted to testify. 5. Defendants seek to compel Plaintiffs to provide complete disclosure in writing of settled companies. During prior trials, defendants have received incomplete and inaccurate information regarding the companies with whom plaintiffs have settled. Accordingly, prior to jury selection, defendants request Plaintiffs to provide, in writing, a complete list of companies with whom they have settled, a list of dismissed defendants and the identification of all trusts with whom they have settled or made claims with. Interrogatory responses 31 and 35 require Plaintiffs to provide information on those companies with whom they have settled. These discovery requests also require Plaintiffs to identify exposure to bankrupt entities, as well as the identification of trusts with which they have filed proofs of claim (POCs). 6. Defendants seek the placement of settled entities on the verdict form for apportionment purposes as required by General Obligations Law Defendants seek a determination that any settled entities should appear on the verdict sheet, so that the jury can properly apportion fault among settled tortfeasors, as required by New York's setoff statute, Section (a) of the General Obligations Law ("GOL provides, in relevant part, as follows: Release or covenant not to sue: Effect of release of or covenant not to sue "). GOL tortfeasors. When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest. In Didner v. Keene Corp., 82 N.Y.2d 342, 351 (1993), the Court of Appeals held that a nonsettling defendant is entitled to a setoff of the greater of "the total of the dollar amounts to be defendants" paid by the settling or "the total dollar amounts means of [settling defendants] liability" corresponding shares of the verdict, allocated in accordance with their apportioned liability"), necessarily requiring an apportionment of liability to the settling tortfeasors. Unlike Article 16, GOL imposes no affirmative statutory burden on the non-settling defendant to prove an affirmative case in order to establish the tortfeasor's equitable share. See Whalen v. Kawsaki Motors Corp., U.S.A., 662 N.Y.S.2d 339, 340, (4th Dep't 1997), (holding that the trial defendant "did not waive application of [GOL ] by declining to put in proof concerning an equitable apportionment of fault... and that, because the settlement amount exceeded the verdict, plaintiff is not entitled to recover..."). In Whalen, the Fourth Department held that the non-settling tortfeasor may either "present evidence against the settling tortfeasor or seek an tortfeasors." apportionment of fault by the jury between the settling and non-settling (emphasis added).

6 Febnjan 26, 2018 Page 6 First Department authority has held that it is reversible error to preclude settled entities from the verdict form in an asbestos case where the evidence presented at trial established that plaintiff tortfeasors' was exposed to the settled asbestos-containing products. Bigelow, 196 A.D.2d appellants' 436. In Bigelow, a sole remaining trial defendant Celotex [b]y virtue of assertion of apportionment claims pursuant to General Obligations Law The First Department ordered a new trial because: contrary to the determination made by the court on the retrial, we find that the evidence presented by appellant warranted submission of the apportionment issue to the jury rather than a directed verdict. Appellant should not have been precluded from having the jury determine whether it should not be held solely responsible for the entire consequences of the disease suffered by plaintiffs in light of the evidence demonstrating that defendant was not the sole manufacturer of the asbestos products to which the injured parties were exposed. 601 N.Y.S.2d at 438. Id. at 521 (internal citation omitted). Any argument that settled entities should be precluded from the verdict sheet based on the application of CPLR 1601 et seq. would effectively impair GOL setoff rights, contrary to GOL and violate the express language of CPLR 1601(2) which requires that "[n]othing in this section shall be construed to affect or impair any right of a law." tortfeasor under section of the general obligations 7. Defendants seek to admit proof of claims Plaintiff's bankruptcy proof of claims ("POCs") should be admitted into evidence at trial. The United States Congress specifically amended the bankruptcy code to deal with post-bankruptcy asbestos trusts. See 11 U.S.C. 524(g). As part of the debtor's reorganization, a trust is established on behalf of future claimants. Id. The bankruptcy court enters an injunction against suit, which operates in the same manner as a release. Id. A trust will pay any claimant who submits proof that he falls into the class of person for whom the trust was created. The POCs submitted in these cases are judicial admissions and, as such, should be admitted for the jury to consider the fault of any bankrupt defendants. POCs should be "admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity." Phillip A. Bellino v. Bellino Construction Co., Inc., 75 A.D.2d 630, 427 N.Y.S.2d 303 (2d Dep't 1980). See also Payne v. New Hyde Park Dodge, 163 A.D.2d 285, 557 N.Y.S.2d 152 (2d Dep't 1990) (attomey's verification of bill of particulars considered judicial admission), accord Bellino v. Bellino Constr. Co., 75 A.D.2d 630, 427 N.Y.S.2d 303; DiCamillo v. City of New York, 245 A.D.2d 332, 665 N.Y.S.2d 97(2d Dep't 1997); Richardson, Evidence 253, at 220 [Prince ed], (verification is expressly authorized by statute), see CPLR 3020[d][3]; Matter of Giambra v. Commissioner of Motor Vehicles of State of NY, 46 N.Y.2d 743, 413 N.Y.S.2d 643, 386 N.E.2d 251 (1978). 8. Any and all evidence related to punitive damages must be excluded. Pursuant to Sections XXV.C and XXIV.A of the current Case Management Order, Plaintiffs cannot seek punitive damages against defendants in these matters because they are joined for

7 Febnjan 26, 2018 Page 7 trial by Decision and Order of Hon. Cynthia Kem, J. on February 23, Therefore, any testimony or evidence relating to punitive damages is irrelevant and prejudicial and must be excluded. 9. Defendants seek to admit deposition transcripts and interrogatories of other fault sharers. Defendants contend that discovery served by other entities is admissible to prove the liability of Article 16 fault sharers. Such proof is admissible under the CPLR and/or under the existing Case Management Order. In 1997, the CPLR 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. CPLR 3117(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 in evidence. CPLR 3131 similarly provides that answers to interrogatories may be used at trial "to the same extent as the depositions of a party." Prior to this amendment, there was a division of opinion among New York courts about when a party was considered adverse to the deponent under CPLR 3117(a)(2), whether at the time of trial, or at the time of the deposition. Compare Ronsini v. Garlock, 256 A.D.2d 250 (1st Dep't 1998); In re Eighth Jud. Dist. Asbestos Litig. [Gram], 197 A.D.2d 901 (4th Dep't 1993) (holding no error in precluding settled defendants interrogatory responses because parties interests were no longer adverse at trial) with American Tel. & Tel. Co. v. Lincoln Indus. Enters., 122 A.D.2d 925 (2d Dep't 1986) (permitting admission of deposition testimony of a settled plaintiff because the relevant time frame for adverse interests is at the deposition, not trial). However, in 1997, CPLR 3117(a)(2) was specifically amended to clarify that such discovery is admissible at trial even after a defendant has settled the case. Thus, the legislative history includes the following: [The former] rule, limiting the use of the depositions of formerly adverse parties, is undesirable in two respects. It often deprives the trier of fact of reliable evidence, inasmuch as the proof, if reliable in the first place, is surely no less reliable merely because the deponent (or deponent's employer) subsequently settled or obtained summary judgment. The evidentiary rule also may deter settlement: a party (e.g. plaintiff) who wants to rely upon a defendant's deposition testimony at trial may be deterred from settling with that defendant since such course would prevent plaintiff from then utilizing that deposition testimony at trial. The measure would amend CPLR 3117 to alleviate the problem. By its provisions, the deposition would become admissible pursuant to

8 Page 8 "" ² 2018 subdivision (a)(2) upon application of a party who was adverse to deponent (or adverse to the party for whom the deponent appeared) as of the date of the deposition. Post- deposition settlement of the deponent (or of the deponent's employer) would no longer bar admission of the deposition. (Mem. Of Assembly Rules Comm., Bill Jacket, L 1996, ch. 117). The deposition testimony (and therefore, under CPLR 3131, interrogatory responses) of a defendant who settles before trial is admissible for any purpose by any party under this amendment. Moreover, they are materially relevant to the heart of the case, specifically, determining which products, if any, caused the disease. By admitting this evidence, the jury will be provided with a better understanding and more accurate depiction of the decedent's true asbestos exposures, both in quantity and quality, rather than simply those exposures that Plaintiff elects to identify, amalgamate and/or emphasize at trial. Defendants will be prejudiced if Plaintiffs are able to ignore and suppress evidence which, by their acceptance of the settlement, demonstrates that an entity was responsible for harms suffered by the Plaintiffs.3 In addition, the current NYCAL CMO permits use of previously served discovery. CMO X(C)(I) states that the: Parties shall make every effort to use depositions as well as discovery obtained from defendants in the preparation of other cases both in this State and throughout the country for all purposes as if taken in such action in these cases in accordance with Paragraph XII of this Order. No other depositions of defendants shall be taken in these cases except pursuant to Paragraph X.C.2. The current CMO contains language that a defendant's response to the standard interrogatories shall be deemed to have been served in every case; thus, a defendant need not answer case specific interrogatories. See CMO IX.B. Both Judge Jaffe and Judge Kem relied upon this section to admit NYCAL interrogatories in Castorina and Sweberg. Defendants also contend that where a plaintiff has identified a discovery response, transcript or other document of a fault sharer in his/her pretrial disclosures, then there can be no complaint 1993),4 that the discovery is unreliable. In Bigelow v. ACANDS, Inc., 196 A.D.2d 436 (1st Dep't 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. Deposition testimony, other than that of Harry Brayne, which was referred to in the answers to the interrogatories, was not admissible since the plaintiffs, 3 See generally, Ableman, Peggy, The Garfock Decision Should Be Required Reading for AII Trial Court Judges in Asbestos Cases, Am. J. Trial Advocacy, Vol. 37:479 (2014); In re Garfock Sealing Tech., LLC, 504 B.R. 71 (WDNC Bankr. 2014) (In calculating the funding for the trust corpus, the judge had the opportunity to review Garlock's cases since the 1980s and found evidence of serious abuses in asbestos compensation cases wherein exposure evidence to bankrupt entities would be withheld until the resolution of the Garfock case). 4 Of course, Bigelow pre-dates the 1997 amendment to CPLR ri 3117(a)(2), and only referred to CPLR ri 3117(a)(3). However, it held that a defendant may use a transcript previously identified by a plaintiff. Thus, to the extent that the plaintiffs have identified interrogatories and/or transcripts in their pretrial disclosures, such discovery should be admissible.

9 Febnjary 26, 2018 Page 9 against whom such testimony was sought to be used, were not present or represented at those depositions, received no notice thereof (CPLR 3117)(a)(3) and did not in the first instance elect to read into any evidence any of the testimony from those depositions. /d. at 439 (emphasis added). 10. Defendants seek to preclude any irrelevant documents, including advertisements, catalogs, manuals and bulletins relating to products or unrelated entities. Defendants move to preclude Plaintiffs from offering any exhibits which are not relevant to the facts of the present case. Only relevant evidence is admissible. Evidence is relevant if it has fact." "any tendency in reason to prove the existence of any material People v. Wilder, 93 N.Y.2d 352, 356, 690 N.Y.S.2d 483 (1999); see also American Motorists Ins. Co. v. Schindler Elevator Corp., 291 A.D.2d 467, 739 N.Y.S.2d 388 (2nd Dep't 2002). "Evidence is properly excluded when it has significant potential to unduly prejudice the dispute." defendant and when it is not centrally relevant to issues in substantial Caster v.incredameal, /nc., 238 A.D.2d 917, 918, 661 N.Y.S.2d 125, 127 (4th Dep't 1997). "Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that jury." its admission will unfairly prejudice the other side or mislead the People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 86 (1988). See also People v. Davis, 43 N.Y.2d 17, 27, 400 N.Y.S.2d 735, 740 (N.Y. 1977) (finding that probative value was outweighed by dangers that the main issue would be obscured by prolongation of the trial and by possibility of undue prejudice. Defendants anticipate that Plaintiffs will attempt to admit proposed exhibits that purport to be advertisements, catalogs, manuals and bulletins relating to products or unrelated entities. Plaintiffs have no foundation for many of these documents, except that such documents contain defendant's name. The mere fact that these exhibits reference products is not an automatic basis for its admission. To be admissible, the proper foundation must be laid to demonstrate authenticity of the documents, and then their relevance to this particular case must be demonstrated. The Court must view the substance of these exhibits in light of the facts of this particular case. There are repeated bases for exclusion of these exhibits, each of which standing alone demonstrates how they simply do not have any relevance to the facts before the Court, and instead serve to confuse the issues and mislead the jury. These objections are listed below. Many of the exhibits have not been authenticated, meaning that any information to be gleaned from the documents is completely speculative and/or may not have been prepared by defendants. Furthermore, the date of some exhibits was not during the time Plaintiffs allegedly worked around products. Or Plaintiffs may seek to offer documents related to other entities or product lines which have no relevance to the issues presented in these cases. It is respectfully submitted that any documents Plaintiffs may seek to introduce which have no relevance, are incomplete or not authenticated should not be admitted at trial. Caster, supra.

10 Febnjan 26, 2018 Page Plaintiffs should be precluded from presenting testimony by state of the art witnesses. Defendants move to preclude "state of the art" witnesses. Plaintiffs have designated art" David Rosner, among others, as their "state of the witness. witnesses for "state art" of the should be directed to abstain from mentioning, referencing or introducing any evidence of expert testimony that is premised on speculation or opinion and not merely an interpretation of what was known in the public, medical and scientific literature during varying periods of time. The scope of an expert's testimony must be limited to his area of expertise. Dr. Rosner is not a medical doctor, toxicologist, epidemiologist or industrial hygienist and does not have any experience in risk assessment. Rather, he bases his opinions solely upon his review of a number of medical, scientific, and corporate publications, articles, documents and unpublished information available from the United States government archives, the archives of scientists and the archives of institutions that worked for and with asbestos companies. This type of expert testimony has been limited and precluded by other courts on this basis. Accordingly, such testimony should be precluded by this Court. 12. Plaintiffs should be precluded from admitting case reports and references to case reports to prove causation. Evidence referencing, mentioning and introducing evidence of case reports, case report compilations, or expert opinions based on such reports to prove causation is impermissible under New York law. Also called "observational studies", case reports are not accepted in the scientific community as a valid methodology. Pullman v. Silvennan, 125 A.D.3d 562, 563 (1st Dep't February 26, 2015); Heckstall v. Pincus, 19 A.D.3d 203, 205 (1st Dep't 2005); Pauling v. Orentreich Med. Group, 787 N.Y.S.2d 331 (1st Dep't 2005)). Case reports have been rejected by both courts and the scientific community as unreliable evidence "because they simply describe reported phenomena without comparison to the rate at which the phenomena occur in the general population or in a defined control group; do not isolate and exclude potentially causation." causes; and do not investigate or explain the mechanism of Casey v. Ohio Med. Prods., 877 F. Supp. 1380, 1385 (N.D. Cal. 1995)); see also Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1411 (D. Or. 1996) ("case reports and case studies are universally regarded as an insufficient scientific basis for a conclusion regarding causation controls" because case reports lack controls"). As such, case reports, and any evidence relying on such reports as a foundation, are irrelevant, prejudicial, will lead to jury confusion and should thus be precluded. 13. Plaintiffs should be precluded from mentioning any dollar award to the jury during opening statements. Any mention by counsel regarding the worth of this case or suggesting an amount to be awarded by the jury during opening statements is improper and prejudicial. An amendment to CPLR 4016(b) bans mention of specific sums during opening statements, although parties may discuss their views of appropriate compensation during closing arguments. See McKinney's Consolidated Laws of New York Annotated, NY CPLR Rule 4016.

11 Febnjan 26, 2018 Page Preclude any evidence of government statements or regulations regarding asbestos hazards. Govemment statements regarding health hazards are irrelevant to the elements of claim that must be proven at trial. Indeed, the Court of Appeals has ruled "standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate causation." Parker v. Mobil Oil Corp., 7 N.Y. 434, 450 (2006). Regulatory guidelines "err on caution" the side of because their analyses "involve a much lower standard than that which is law." demanded by a court of McLain v. Metabolife Int'I Inc., 401 F.3d 1233, 1250 (11th Cir. 2005) (quoting Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1201 (11th Cir. 2002)). This stands in contrast to the burden which must be met at trial, specifically, determining whether a harmful substance has actually caused a particular harm to an individual. See Comeau v. WR. Grace 8 Co., 216 A.D.2d 79, 80 (1st Dep't 1995); Cawein v. Flintkote Co., 203 A.D.2d 105, 106 (1st Dep't 1994). As government statements and regulations use a lower standard than the Court, they are unreliable and irrelevant in establishing general and specific causation, and therefore ought to be precluded lest the jury become prejudiced and confused. ban" 15. Preclude any references to an "asbestos or referring to asbestos as a substance" "banned by the Environmental Protection Agency. References to Environmental Protection Agency hearings on asbestos, testimony presented at such hearings and of the EPA's alleged banning of products containing asbestos are inaccurate and highly prejudicial. Attempts by the EPA to ban asbestos use entirely were specifically overruled in Corrosion Proof Fittings v. Environmental Protection Agency, 947 F.2d 1201 (5th Cir. 1991). 16. Plaintiffs should be precluded from suggesting that jurors place themselves in the position of the plaintiff. Suggesting or asking jurors to place themselves in the position of a plaintiff is an improper appeal to passion that prejudices the jurors. See Zemiliansky v. United Parcel Service, 175 Misc. 829 (Sup. Ct. N.Y. Co. 1940); Marcoux v. Farm Service and Supplies Inc., 290 F. Supp.2d 457 (S.D.N.Y. 2003). 17. Preclude any reference to conspiracy among members of the "asbestos industry". Defendants seek to preclude any opinion or testimony by experts about their belief of a conspiracy among asbestos manufacturers and suppliers to keep secret from the public information about the harmful health effects of asbestos exposure. Such testimony lacks the factual support and qualification to offer case-specific opinions as to defendants. See McClure v. Owens Corning, 188 III.2d 102, (1999); Threadgill v. Manville Corp., 1990 U.S. Dist. LEXIS (D. Del. 1990); Temple v. Raymark, 1998 (Del. Super) Lexis (1988); Honda Motor Co., Ltd. v. Oberg, 512 U.S. 415, 432 (1994); Minichiello v. Supper Club, 296 A.D.2d 350, 352 (2002).

12 Febn a 26, 2018 Page Defendants move to preclude Plaintiffs from making any references to any relative's mental anguish and emotional distress as such conditions are not compensable and will only serve to inflame the passions of the jury and prejudice defendants. 19. Preclude any attorney, fact witness, or expert witness from introducing or referencing certain medical and scientific articles, treatises, periodicals, or pamphlets at the time of trial. Defendants anticipate that Plaintiff will attempt to introduce into evidence numerous "medical articles" and scientific in an attempt to prove defendants knowledge of asbestos-related hazards. The articles are hearsay, and therefore, inadmissible. 20. Plaintiffs should be precluded from submitting evidence of defendant's membership in any trade association in an effort to impute that trade association's knowledge to defendants. Defendants seek to preclude Plaintiffs from making any reference to or presenting testimony with respect to the minutes of general meetings and committee meetings or any other records of any trade organization or association or purported appearance at any conference/seminar by any employees of defendants. Such evidence is inadmissible absent a showing that defendants approved the conduct at the time and that defendants ratified the conduct with full knowledge of all aspects of the conduct. Further, the referenced records include writings and prior statements of witnesses who are not available for cross-examination and thus constitutes inadmissible hearsay. 21. Plaintiffs should be precluded from implying or otherwise attempting to introduce speculative evidence that decedent would have read and heeded a warning had one been given. Plaintiff has the burden of proof in a failure to warn case that the product user would have followed the waling if given. Sosna v. American Horne Prods., 298 A.D.2d 158 (1st Dep't 2002); see also, In Re New York City Asbestos Litigation, 990 N.Y.S.2d 174, 195 (1st Dep't 2014) (Friedman, J., dissenting). To the extent there is no proof that Plaintiffs would have heeded any warnings, any such speculative testimony or evidence to try to prove such a claim must be excluded. 22. Plaintiffs should be precluded from submitting any evidence based on videotapes purporting to depict the release of alleged respirable asbestos fibers. Such evidence ought to be precluded as the allegedly asbestos-containing products used in such a video were not manufactured by defendants, the methodologies used in such videos have not gained general acceptance within the relevant scientific community, and such videos do not distinguish between asbestos fibers and non-asbestos fibers. See Austin v. Bascaran, 585 N.Y.S.2d 859 (3d Dep't 1992); Mercantante v. Hyster Co., 552 N.Y.S.2d 364 (2d Dep't 1990); Merrit v City of Long Beach, 527 N.Y.S.2d 74 (2d Dep't 1988); Mechanick v. Conradi, N.Y.S. 586 (3d Dep't 1988); Glusaskas v. Hutchinson, 554 N.Y.S.2d 323 (Pt Dep't 1989).

13 Febn a 26, 2018 Page Plaintiffs should be precluded from mentioning any prior lawsuits involving defendants. Defendants seek to preclude any evidence or testimony about prior lawsuits involving defendants. Such information is irrelevant to the current case and should be excluded. Evidence regarding other lawsuits filed against defendants may lead a jury to unfairly infer that the defendant has a propensity for negligence or other wrongful conduct and, in turn, would unduly prejudice them. The undue prejudice caused by reference to other lawsuits filed against defendants would substantially outweigh any probative value of such evidence and therefore should be excluded. 24. Defendants move to preclude Plaintiffs from producing photographs and/or day-in- the life videos, which are not relevant and serve only to prejudice and inflame the passions of the jury. 25. Defendants move to preclude the application of evidence specific to the Duggan matter in the Kranichfeld matter and vice versa. Defendants Tishman Realty & Construction Co., Inc., n/k/a TTV Realty Holdings Inc. (TRCC) and Hilton Worldwide, Inc. i/s/h/a Hilton Worldwide's (Hilton) move in limine to preclude Plaintiffs from inferring that any evidence presented in the Kranichfeld matter is also applicable in the Duggan matter. Plaintiff Kranichfeld did not claim exposure to asbestos containing materials or equipment at either the World Trade Center, where TRCC faces potential liability, or at either the Statler Hilton Hotel or the Waldorf Hotel where Hilton faces potential liability. As such we respectfully request that Plaintiffs be barred from presenting any evidence that is specific to the Kranichfeld matter, particularly but not limited to any mention of fireproofing spray, in the Duggan matter. Similarly, joint defendants request that Plaintiffs be precluded from presenting any other evidence specific to the Duggan matter in the Kranichfeld matter and vice versa. Joint defendants also request that Plaintiffs be precluded from inferring that any evidence specific to and presented in the Duggan matter is also applicable in the Kranichfeld matter, and vice versa. 26. General Reservations Defendants further state that the absence of relief requested herein is not a concession as to the admissibility, materiality and/or relevance as to any other evidence, materials and/or documents may seek to use at trial and/or admit into evidence and the defendant hereby reserves its right to object to them at the time of trial. Respectfully submitted, Peter J. Dinunzio- Dinunzio Enclosures cc: All counsel (via NYSCEF only)