Eckert Seamans Cherin & Mellott, LLC 'lel February 5, 2018

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1 Eckert Seamans Cherin & Mellott, LLC 'lel CKERT Four Gateway Center FAX "';, I",<i','(~5 100 Mulberry Street, Suite Newark, NJ Misha Shah, Esq. (973) February 5, 2018 Via E-File and Mail Honorable Manuel Mendez, J.S.C. New York County Supreme Court 71 Thomas Street, Room 210 New York, New York Re: Motions in Limine on behalf of A.O. Smith Water Products Co. New York City Asbestos Litigation Supreme Court, New York County Mary Murphy-Clagett, as Temporary Administrator for the Estate of Pietro Macaluso v. A.O. Smith Water Products Co., et al. (Index No /2015) Simmons Hanly Conroy, LLC April 2016 IE Cluster Trial Date: February 7, 2018 Dear Justice Mendez: Eckert Seamans Cherin 4 Mellott, LLC respectfully submits this letter application for the following motions in limine in the above-captioned matter on behalf of A.O. Smith Water Products Smith" Co. (hereinafter "A.O. Smith"): 1. Plaintiff Should be Precluded from Mentioning, Criticizing, or Objecting to any Testimony Personal of A.O. Smith's Corporate Witness based on a Purported "Lack of Knowledge." A.O. Smith seeks to preclude Plaintiff from mentioning, referencing, or introducing knowledge" evidence regarding any purported "lack of personal of A.O. Smith's corporate witness. Any challenge to such corporate witness's personal knowledge ignores the fact that such testimony is offered in their capacity as a corporate representative - not as an individuals and, as knowledge" such, under well-settled law, whether the representative has "personal of the subject matter of his testimony is irrelevant. 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 & Olick, 185 Misc. 2d 23, 26 (Sup. Ct., New York Cty. 2000). Although a corporation is a "person," 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

2 Macaluso v. A.O. Smith, etal, CK RTI. Page 2 fi V i r'"'.i ~ 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. persons," New York 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);Casolarov. WorldChampionship Wrestling, 47 A.D.3d 803 (2d Dep't 2008). Thus, it is 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. 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 to permit inquiry of facts known by the corporation which 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 Am., Inc. v. Exclusive Imports 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 designee' 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); 99-cv- Buycks- Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 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); American 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 the corporation, not his or her personal knowledge.").1 1 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,' 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 C4518:2 (citing People v. Kennedy, supra, 68 N.Y.2d 569; Cornier

3 " f" t KERT ' I r I!<',ip a.' if Pap 3 tiaa.t' il)r ATTOR.NEYS 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 employees of the corporation with knowledge of the relevant information. In such cases, the Plaintiff 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 designee was involved." 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 sources,"' upon information obtained '"from documents, past employees, or other Tailored Lighting, Inc. v. Osram 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, aff'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 personal knowledge" and seek to preclude that representative from testifying regarding the corporate knowledge he possesses that may be unfavorable to the plaintiffs claim. Surely, neither the CPLR nor the federal rules contemplate such an anomalous and unfair result. For these reasons, any statement or objection Plaintiff might assert regarding A.O. Smith's corporate witness's lack of personal knowledge is specious, and should be rejected by this Court. 2. Plaintiff Should be Precluded from Asserting that A.O. Smith Should be held Liable for Asbestos or Asbestos-Containing Materials Manufactured by Third Parties. The law on this issue is well settled, and any argument to allow testimony of exposure to asbestos from external insulation as described by Decedent, associated with A.O. Smith boilers as items for which A.O. Smith bears liability for asbestos-containing parts should be rejected. While the manufacturers and suppliers of any of the asbestos-containing components which Decedent may have been exposed to asbestos from may be liable for the harms caused by those products, 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 f 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 and customary practices and procedures for the making of such records." 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 hearsay exception witness." 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).

4 QK PT * ' 5& A Page 4 A.O. Smith cannot be held liable under any principle of tort law, including the negligence, breach of warranty and strict liability theories that Plaintiff has asserted against A.O. Smith. Any suggestion to the contrary during the trial of this matter must, therefore, be excluded. Under the holding ininre New York City Asbestos Litig. v. A.W Chesterton (Dummitt), 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 warn 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 necessity, is necessary to enable the manufacturer's product to function as intended." 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 manufactures 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 manufacturers' the rim assembly in issue and with many, but not all, other 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 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 "Thus, 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 it." contribute to the alleged defect in a product, had no control over it, and did not produce Id. at 79 N.Y.2d at 298. 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, and from which that company did not receive economic benefits. Furthermore, where there is no evidence that A.O. Smith had an active role, interest, or influence in the types of products that were allegedly used in connection with its own products after being placed into the stream of commerce, A.O. Smith has no duty to warn. Thus, the criteria that would render a product manufacturer liable for a third-party's after-market component parts are thoroughly absent as it concerns A.O. Smith. Cf Dummitt, 27 N.Y.3d at , 37 N.Y.S.3d at Plaintiff's Experts should be Precluded from Presenting any Evidence or Oral Exposure" Testimony Expressing the Legally-Invalid Opinion that "Each and Every to Asbestos Sustained by an Individual Contributes to the Cause of an Asbestos-

5 <KURT t 3. Page 5 Related Disease. Plaintiff's experts should be precluded from presenting any evidence or testimony that exposure" "cumulative" "each and every to asbestos, general or exposure to asbestos, "substantial exposure to asbestos," shown," that "each such product for which exposure can be or similarlyworded arguments was a substantial factor in causing Decedent's disease. The methodology exposure" underlying the "each and every 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); Cornell v. 360 W 51³T 51 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 and Parker v. Mobil Oil Corp. Juni reiterated that Plaintiffs 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 defendants 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 First Department re-confirmed 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 expert' enough to support a determination against a specific defendant. Id. Therefore, Plaintiff's expert's exposure" "each and every opinions, which fail to quantify a level of exposure to an A.O. Smith 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 Plaintiff's expert witness testimony. Absent such relief, the jury may be presented with alleged expert opinion that is legally and scientifically invalid and incompatible with the very instructions this Court will give the jurors regarding their obligations in weighing the evidence. 4. A.O. Smith Seeks to Compel Plaintiff to Provide Complete Disclosure in Writing of All Settled Defendants and/or Companies. During previous trials, A.O. Smith has received incomplete and inaccurate information Plaintiffs' regarding the companies with whom counsel has settled. Accordingly, prior to jury selection, A.O. Smith requests Plaintiff's counsel 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. Interrogatory response 31 requires Plaintiff to provide ' The Court of Appeals has recently granted leave to appeal.

6 E CK R, ~.l'il8 * Page 6 information on those companies with whom they have settled. 5. A.O. Smith Seeks to Admit Plaintiff's Proof of Claim Forms Plaintiff's proof of claims 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 created.3 the class of person for whom the trust was The proof of claims submitted in these cases are judicial admissions and, as such, should be admitted for the jury to consider the fault of bankrupt defendants. Proof of claims should be "admissible against a party provided that the capacity." statements had been made by the attorney while acting in his authorized Phillip A. Bellino v. Bellino Construction Co., Inc., 75A.D.2d 630, 427 N..Y.S.2d 303 (2d Dep't See also Payne v. New Hyde Park Dodge, 163 A.D.2d 285, 557 N.Y.S.2d 152 (2d Dep't 1990) (attorney's verification of bill of particulars considered judicial admission), accord Bellino v. Bellino Constr. Co., 75 A.D.2d 630, 427 N.YS2d 303;DiCamillov. CityofNew York, 245 A.D.2d 10th 332, 665 N.Y.S.2d 97 (2d Dep't 1997); Richardson, Evidence 253, at 220 [Prince 10'"ed], (verification is expressly authorized by statute), see CPLR 3020[d][3]; Matter of Giambra v. Commissioner ofmotor Vehicles ofstate ofn.y, 46 N.Y.2d 743, 413 N.Y.S.2d 643, 386 N.E.2d 251 (1978). any 6. A.O. Smith Seeks to Admit Deposition Transcripts and Interrogatories of All Article 16 Fault Sharers. A.O. Smith contends 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 ("CMO"). The NYCAL CMO permits use of previously served discovery. CMO Section XII states: A. Answers by nonparties of NYCAL standard sets of interrogatories may be used at trial to prove: 1) that a product or products of the nonparty contained asbestos, or that asbestos nonparties' was used in conjunction with the product or products, and/or 2) any failure to warn by the nonparty concerning an asbestos-containing product and/or the use of asbestos in nonparties' association with a product. In all other respects, answers to standard form interrogatories shall not be admissible at trial unless subject to an applicable hearsay exception ³ See generally, Ableman, Peggy, The Garlock Decision Should Be Required Reading for All Trial Court Judges in Asbestos Case, Am. J. Trial Advocacy, Vol. 37:479 (2014); In re Garlock 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 Garlock case).

7 gk PT... Page 7 under the Rules of Evidence of the State of New York. For purposes of this section, a nonparty shall include a settled party. B. Nonparty depositions may be used where allowed by the CPLR. Moreover, CPLR 3117(a)(2) states: "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." 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 Decedent's 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. A.O. Smith will be prejudiced if Plaintiff is able to ignore and suppress evidence which, by their acceptance of the settlement, demonstrates that an entity was responsible for harms suffered by the Decedent. A.O. Smith also contends 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. ACANDS, Inc., 196 A.D.2d 436(1st Dep't. 1993)4, 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, 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 4 Bigelow pre-dates the 1997 amendment to CPLR 3117(a)(2), and only referred to CPLR 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.

8 CKE T,. '-.' ATLAW 5 Page 8 the first instance elect to read into any evidence any of the testimony from those depositions." Id. at 439 (emphasis added). 7. A.O. Smith Seeks to Preclude Any and All Evidence Related to Punitive Damages. Plaintiff should be precluded from pursuing punitive damages. The primary purpose of punitive damages is not to compensate plaintiffs, but to punish and deter wrongdoers. Exemplary punitive damages do not serve to compensate plaintiffs for injuries, but rather provide a windfall to plaintiffs and their counsel, warranting judicial restraint and control of such awards. See In re Collins, 233 F.3d 809, 812 (3d Cir. 2000); see also Adams v. Murakami, 813 P.2d 1348, 1352 (Cal. (" 1991) ("[T]he purpose of punitive damages is not served by financially destroying a defendant. The purpose is to deter, not to destroy."). Judicial preclusion of punitive damages is justified where such an award will not serve any proper purposes, but instead will harm other, even more fundamental interests, such as the compensation of injured parties and the protection of the defendants' rights to due process. See, e.g., BMW v. Gore, 517 U.S. 559, 568 (1996) (holding that the Due Process Clause prohibits grossly excessive awards of punitive damages). There is no deterrence factor in this case, as there is no future behavior relating to the fact pattern of this case which a punitive damage award would deter. Furthermore, under New York law, punitive damages are "intended as punishment for gross misbehavior for the good of the public and have been referred to as 'a sort of hybrid between '" a display of ethical indignation and the imposition of a criminal fine Home Ins. Co. v. Am. Home Prods. Corp., 75 N.Y.2d 196, 203, 550 N.E.2d 930, 934 (1990). The conduct necessary to merit punitive damages is that which has a high degree of moral culpability demonstrating a conscious disregard for the rights of others or so reckless as to amount to such disregard, consisting of actions that constitute willful or wanton negligence. Id. at , 550 N.E.2d at 934. The Courts of the First Department have uniformly applied an overwhelmingly high standard that must be satisfied for an award for punitive damages, explaining that "[a]n award for punitive damages evidence"' must be supported by 'clear, unequivocal, and convincing and punitive damages should not be awarded where the evidence fails to establish that the defendant "was motivated by malice, vindictiveness or criminal intent or that its conduct was intentionally outrageous or safety." oppressive or undertaken with wanton disregard for the public Camillo v. Geer, 185 A.D.2d 192, , 587 N.Y.S.2d 306, 309 (1st Dep't. 1992) (citations omitted). There is no factual basis for any such punitive damage claim against A.O. Smith. Therefore, any testimony or evidence relating to such damages is irrelevant, extremely prejudicial, and must be excluded. 8. A.O. Smith Moves to Preclude a Charge of Recklessness. We anticipate that Plaintiff will attempt to introduce evidence indicating that A.O. Smith knew that asbestos could cause diseases before it became public knowledge. However, there is

9 ,QK RT ". [- Page 9 absolutely no evidence that defendants recklessly disregarded the Decedent's safety in the sale of any products. Recklessness is established where "the actor has intentionally done an act of an unreasonable character in disregard of a known and obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome." In the Matter of New York City Asbestos Litigation, 89 N.Y.2d at (1997). Applying that standard here, the evidence is insufficient to support a finding of reckless disregard for Decedent's safety, or the safety of others. 9. A.O. Smith Seeks to Preclude Irrelevant Documents, Including Advertisements, Catalogs, Manuals and Bulletins Regarding Asbestos Products and/or Entities Unrelated to the Trial. A.O. Smith moves to preclude Plaintiff 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 (2d Dep't 2002). "Evidence is properly excluded when it has significant potential to unduly prejudice the defendant and when it is not centrally relevant to issues in substantial dispute. Caster v. IncredaMeal, Inc., 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 its admission will unfairly prejudice the other side or mislead the jury." 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). A.O. Smith anticipates that Plaintiff will attempt to admit proposed exhibits that purport to be advertisements, catalogs, manuals, and bulletins relating to asbestos, asbestos products, and/or unrelated entities. Plaintiff has no foundation for many of these documents, except that such "asbestos" documents contain the word or contain an entity's name. The mere fact that these exhibits reference a Defendant's product is also 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 A,O.

10 QKP, Page 10 Smith. Furthermore, the date of some exhibits was not during the time Decedent allegedly worked around A.O. Smith's products, or were not the same series or model of products from which asbestos exposure is alleged. It is anticipated that Plaintiff might also seek to offer documents related to other entities or product lines which have no relevance to the issues presented in this case. It is respectfully submitted that any documents Plaintiff may seek to introduce which have no relevance, are incomplete, or which have not been authenticated should not be admitted at trial. 10. Plaintiff Should be Precluded from Presenting Testimony by State of the Art Witnesses. art" A.O. Smith moves to preclude Plaintiff's "state of the witnesses, Dr. Barry Castleman, Dr. Gerald Markowitz, and Dr. David Rosner, all of whom are unqualified to testify as experts. art" We expect that one or more of these individuals will be called to testify regarding "state of the issues as they have done in the past. In past cases, Plaintiff's counsel has continuously asserted art" that these individuals are experts in "state of the issues. However, these individuals can best be characterized as librarians, as their work is merely reading and regurgitating documents. These art" individuals have no independent education, training, or experience regarding "state of the issues, but rather base their opinions on literature, reports, studies and doctors prepared by others. As such, any lay witness would be just as capable of reviewing the materials reviewed by these doctors and rendering their own opinion. Dr. Castleman's testimony specifically has been excluded or limited in Texas, California, Oklahoma, Alabama, and Washington after several Courts recognized Dr. Castelman's inability to interpret and authenticate records. In reliance on the Federal Rules of Evidence, 720, the Northern District of California held "we are not persuaded that Castleman, as a lay person, possesses the expertise necessary to read complex, technical medical articles and discern which authors' conclusions." portions of the articles would best summarize the See, e.g., In Re Related Asbestos Cases, 543 F.Supp (N.D. Cal. 1982). We therefore anticipate that Dr. Markowitz and/or Dr. Rosner will be called at trial, and we similarly expect Dr. Markowitz and Dr. Rosner to merely base their opinions on the review of records and reports prepared by others. As such, like Dr. Castleman, they do not possess the expertise to read complex, technical medical articles and authors' discern which articles would best summarize the conclusions, and their testimony should be precluded. 11. Plaintiff 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 studies," New York law. Also called "observational case reports are not accepted in the scientific community as a valid methodology. Pullman v. Silverman, 125 A.D.3d 562, 563 (1st Dep't. v. Pincus, v. February 26, 2015); Heckstall 19 A.D.3d 203, 205 (1st Dep't 2005); Pauling

11 gk T Page 11 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 alternative causes; causation." 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 controls" scientific basis for a conclusion regarding causation 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. 12. Plaintiff Should be Precluded from Mentioning any Dollar Award to the Jury During Opening Statements. Any mention by Plaintiff's 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 A.O. Smith Moves to Preclude Evidence of Government Statements or Regulations Regarding Asbestos Hazards. Government statements regarding health hazards are irrelevant to the elements of Plaintiff's claim that must be proven at trial. 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 the caution" side of because their analyses "involve a much lower standard than that which is law." (11th demanded by a court of McLain v. Metabohfe Int'l Inc., 401 F.3d 1233, 1250 Cir. 2005) (11th (quoting Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 1201 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. W.R. Grace & 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" 14. A.O. Smith Moves to Preclude References to an "Asbestos or Referring to Substance" Asbestos as a "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

12 EKE ';-".I't A.. T Page 12 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). 15. Plaintiff 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). 16. A.O. Smith Seeks to Preclude Any Reference to a Purported Conspiracy Industry." Members of the "Asbestos amongst A.O. Smith seeks to preclude any opinion or testimony by Plaintiff's 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, d 102, (1999); Threadgill v. Manville Corp., 1990 U.S. Dist. LEXIS (DE 1990); Temple v. Raymark, 1998 DE Super Lexis (1988); Honda Motor Co., Ltd. V Oberg, 512 US 415, 432 (1994); Minichiello v. Supper Club, 296 A.D.2d 350, 352 (2002). 17. A.O. Smith Moves to Preclude Plaintiff from Making any Reference at Trial to Plaintiff as a "Victim" Victim." or an "Asbestos Any such conclusory terms are unfairly prejudicial to A.O. Smith, and Plaintiff must be precluded from using such terms in the presence of the jury at trial. Where the use of unfair or prejudicial language can be foreseen, it properly is prohibited in limine, thus avoiding a problematic exercise in attempting to un-ring the bell. See, e.g., In re Related Asbestos Cases, 543 F. Supp. 1152, 1159 (N.D. Cal. 1982). It does not matter if the terms or labels are expected to be used by Plaintiff, by Plaintiff's counsel, or by one of Plaintiff's expert witnesses. See, e.g., Beck (" v. Wings Field, Inc., 122 F.2d 114, 117 (3d Cir. 1941) ("It is quite as necessary to protect a party against the improper remarks made to a jury by a witness as it is against such remarks when uttered counsel" by counsel"). We therefore respectfully requests that Plaintiff, her counsel, and her witnesses be victim" precluded from using the term "asbestos or any form or derivation thereof at trial. Plaintiffs' 18. A.O. Smith Moves to Preclude from Making any References to any Friend's or 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 to Prejudice A.O. Smith,

13 CKPPT t N Page 13 As set forth above, evidence is relevant if it has "any tendency in reason to prove the fact." 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 (2d Dep't 2002). Moreover, even if certain evidence or testimony is relevant, it is "properly defendant." excluded when it has significant potential to unduly prejudice the Caster v. Friends' IncredaMeal, Inc., 238 A.D.2d 917, 918, 661 N.Y.S.2d 125, 127 (4th Dep't 1997). or relatives' emotional distress and/or mental anguish is not compensable and therefore testimony of that nature fails to meet the basic standard of relevance. It should therefore be excluded. 19. Motion In Limine to Preclude any Attorney, Fact Witness, or Expert Witness from Imputing the Actions or Knowledge of a Trade Association to A.O. Smith, Unless Plaintiff Proves that A.O. Smith, had Actual Knowledge of, and Approved, the Actions of or Information Distributed by the Trade Association at Trial. A.O. Smith moves to preclude plaintiff from submitting evidence of its membership in any trade association in an effort to impute that trade association's knowledge to A.O. Smith. Membership in a voluntary association is not a sufficient basis to impute knowledge. Instead, individual liability of a member of an association must be predicated upon proof of individual authorization of a wrongful act. Furthermore, for information published by trade associations to be admitted such that a plaintiffs' attorney can argue it provides a basis for jury to find a particular defendant knew or should have known about asbestos health hazards, the trade association has to be a trade association the defendant belonged to, and there must be some proof the defendant received the subject information. Here, plaintiff clearly cannot meet this test. Specifically, plaintiff cannot prove: a) That documents allegedly associated with the trade organizations are authentic; b) That certain individuals listed within those documents are associated with Defendants or ever provided the documents or information to Defendants; c) That Defendants ever had actual or constructive knowledge of the documents or the facts in those documents; or d) That any individual received the information in his or her capacity as an agent or officer of their respective companies. See, e.g., Loschiavo v. Port Authority of New York, 58 N.Y.2d 1040, 432 N.Y.S.2d 440 (1983) (ruling that, pursuant to the long-settled laws of the State of New York, "an oral or written statement made by an agent may be received in evidence against his principal under the admission

14 Macaluso v, A.O, Smith, et al, o Smith's =ta Motions in Limine ESKERT.'its' v> ' ~.. -I".t! Page 14 exception to the hearsay rule only if it was spoken or written within the scope of authority of the employer" agent to speak or write for his employer"). Plaintiffs cannot meet this standard. 20. Plaintiff 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 A.O. Smith; 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 Dept. 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 (1st Dep't. 1989). 21. Motion In Limine to Preclude Evidence at Trial from Plaintiff and Other Lay Witnesses Regarding Asbestos Content in A.O. Smith Products. It is well-established that mere speculation that a defendant may have contributed to plaintiff's injuries is insufficient to defeat even a motion for summary judgment, much less to be permitted to be presented to the jury as competent evidence. Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595. In Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986) the Court held that "unsubstantiated assertions or speculations of plaintiff's counsel care" that a defendant may have breached a possible duty of were not sufficient to create an issue of fact to get to a jury. Alvarez, 508 N.Y.S.2d at 927. Likewise, testimony asserting that something knowledge" was "common is inadmissible hearsay. See Scott v City of New York, 591 F. Supp. 2d 554, 566 (S.D.N. Y. 2008). This is consistent with the black letter legal principle lay witnesses are not permitted to provide opinions on matters beyond his or her perception. See People v. (" Creasy, 236 N.Y. 205, 222, 140 N.E. 563, 569 (1923). ("Opinion 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 obtainable" to form an accurate judgment therefrom, and no better evidence than such opinions is obtainable"). A.O. Smith anticipates Plaintiffs will attempt to rely upon Mr. Macaluso's testimony to establish the purported asbestos composition of materials or components he associated with A.O. Smith boilers. Absent a foundation establishing a competent and admissible basis for Mr. Macaluso's belief as to the material composition of any product or component he associates with A.O. Smith, such statements of belief regarding mineral composition of a material are the product of inadmissible hearsay or speculation outside the scope of a lay witness's knowledge.

15 I;4' '.4 ri tk I( i', 4c- Page 15 ~ st AT L AW 22. Plaintiff Should be Precluded from Mentioning any Prior Lawsuits Against or Involving A.O. Smith. A.O. Smith seeks to preclude any evidence or testimony about any prior lawsuits involving A.O. Smith. Such information is irrelevant to the current case and should be excluded. Evidence regarding other lawsuits filed against A.O. Smith is likely to lead a jury to unfairly infer that A.O. Smith has a propensity for negligence or other wrongful conduct and, in turn, A.O. Smith would be unduly prejudiced. Even if certain evidence or testimony is relevant, it is "properly excluded defendant." when it has significant potential to unduly prejudice the Caster v. IncredaMeal, Inc., 238 A.D.2d 917, 918, 661 N.Y.S.2d 125, 127 (4th Dep't 1997). The undue prejudice caused by reference to other lawsuits filed against A.O. Smith would substantially outweigh value of such evidence, and therefore should be excluded. any probative 23. A.O. Smith Moves to Preclude Plaintiff from Producing Photographs and/or Day-inthe Life Videos, which are not Relevant and Serve only to Prejudice A.O. Smith and Inflame the Passions of the Jury. Such evidence would be unduly prejudicial to Defendants and, in any event, should not be permitted to be introduced into evidence prior to the Court ruling on their admissibility. Kingsley v. Mandell Food Stores, 57 A.D.2d 944 (2d Dep't 1977). 24. A.O. Smith Moves to Preclude Plaintiff from Referencing A.O. Smith's Wealth, Financial Condition, or Liability Insurance. A.O. Smith's financial condition has no rational bearing on issues of liability, and any introduction of such evidence carries the obvious, unavoidable, and completely unnecessary danger that it will ignite the jury's passions and prejudices. Placing evidence of A.O. Smith's finances before the jury violates their constitutional due process rights. In defining the constitutional standards required to review punitive damage awards, the "guideposts" United States Supreme Court identified three for judging the reasonableness of an award, and the propriety of the process that produced it: (1) the degree of reprehensibility of the defendant's conduct; (2) the ratio of the award to the actual harm inflicted on the plaintiff; and (3) a comparison with the civil and criminal penalties imposed for comparable misconduct. BMW of North America, Inc. v. Gore, 517 U.S. 559, (1996). As the Supreme Court confirmed in State Farm, none of the BMW v. Gore guideposts considers the defendant's wealth. In State Farm, the Court noted that the defendant's assets "had little to do with the actual harm sustained by the [plaintiffs]," and holding that "[t]he wealth of a defendant cannot justify an otherwise award." unconstitutional punitive damages State Farm, 538 U.S. at 427. A defendant's assets or harm." wealth "bear no relation to the award's reasonableness or proportionality to the Id. Arguments based on wealth or assets merely "seek to defend a departure from well-established damages." constraints on punitive Id.; see also, Zazu Designs v. L 'Oreal SA., 979 F,2d 499, 508

16 CK, p Page 16 ~~1 al 'LI UiI 4 ~ (7th Cir. 1992) (finding that a defendant's financial condition is completely unrelated to the victim's injury or "the size of the award needed to cause corporate managers to obey the law"); Pivot Point Int'l, Inc. v. Charlene Prods., Inc., 932 F. Supp. 220, 223 (N.D. Ill. 1996) ("[E]ven when considering punitive damages based on state law, the Supreme Court did not treat the defendant's wealth as relevant."). Generally, statements about whether a Defendant has liability insurance or whether a Defendant's insurer may pay a portion of the costs, investigation, defense, or potential judgment are inadmissible because of their great potential for creating undue prejudice. Young v. Knickerbocker Arena, 722 N.Y.S.2d 596, 599 (3d Dep't 2001); Constable v. Matie, 608 N.Y.S.2d 10, 11 (4th Dep't 1993). This preclusion also applies to any references to insurance employees, adjuster," "adjuster," man," such as "insurance "claims or other similar terms because they similarly inject the issue of liability insurance coverage into the case. Here, the issues of liability insurance and liability insurance coverage are wholly immaterial. Id. 25. A.O. Smith Moves to Preclude Plaintiff from Introducing Evidence Against A.O. Smith Regarding Asbestos After the Dates of Decedent's Alleged Exposure. Any evidence post-dating Decedent's alleged exposure to asbestos is irrelevant to prove matters properly in issue for this matter. See In re: Eighth Judicial District Asbestos Litigation, 152 Misc. 2d 338, 576 N.Y.S.2d 757 (Sup. Ct. Erie Co. 1991) (precluding the use of government regulations promulgated after the last date of plaintiff's alleged exposure to asbestos). One of the primary issues that will be litigated in this case is whether any defendants knew or should have known that the products used at the work sites at issue posed a hazard to persons such as Mr. Dawson. It is well held, however, that a party can be charged with no more knowledge than that which exists at the time a product is manufactured. See, e.g., Carroll v. CBS Corp., 2015 N.Y. Misc. LEXIS 1131, at *4 (Sup. Ct. N.Y. Co. Mar. 23, 2015) (noting that plaintiffs must prove that known" a contractor "knew or should have that asbestos was dangerous in order to impute liability); see also Donuk v. Sears, Roebuck and Co., 15 Misc. 3d 1142(A), 841 N.Y.S.2d 819, n.2 (N.Y. Sup. Ct., Kings Co. 2007) (recognizing that state of the art materials must pre-date the design and manufacturing stages, otherwise they cannot be considered in a design defect claim), Rainbow v. Albert Elia Building Co., Inc., 79 A.D.2d 287, 293 (4th Dep't 1981) (concluding that, because design defect cases are conceptually analogous to negligence cases, post-accident tests and findings are only admissible if they relate back to the technology of the industry at the time of manufacture); Bolm v. Triumph Corp., 71 A.D.2d 429, (4th Dep't 1979) (holding that trial court erred by receiving post-accident studies and tests because plaintiffs failed to establish that the studies and tests were within the state of the art at the time of manufacture). Any evidence, whatsoever, as to what A.O. Smith knew, or should have known, about the hazards of asbestos subsequent to the last date of testified-to exposure from any product manufactured by A.O. Smith must be precluded.