AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP ATTORNEYS AT LAW 600 THIRD AVENUE, NEW YORK, N.Y Luc:

Transcription

1 AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP ATTORNEYS AT LAW 600 THIRD AVENUE, NEW YORK, N.Y Luc: Via E-Filing, Regular Mail, and Hand Delivery Hon. Barbara Jaffe, J.S.C. Supreme Court of the State of New York County of New York 60 Centre Street New York, NY Justice Jaffe: LONG ISLAND OFFICE 390 OLD COUNTRY ROAD Isr FLOOR GARDEN CITY, NEW YORK TELEPHONE: ALEXANDRA Y. BYSTRITSKAYA (212) Re: Robert Duane Altman et al., v. Advance Auto Supply, et al.,index No.: /2016 Jerry Lee Hofstetter et al., v. BW/IP International Co., et al.,index No /2016 October 2016 In Extremis Cluster Ford Motor Company's Motion In Limine to Exclude Ralph A. Froehlich and Stanley Fowler Defendant Ford Motor Company ("Ford"), by its attorneys, Aaronson Rappaport Feinstein & Deutsch LLP, respectfully submits this motion in limine seeking to exclude evidence of, references to, testimony of, and/or statements made by Ralph A. Froehlich and Stanley Fowler. As an initial matter, the deposition testimony of Ralph A. Froehlich is unrelated to this case and subject to a protective order. The testimony and statements by Froehlich and Fowler are also inadmissible hearsay not subject to any exception. Additionally, the testimony and statements are highly inflammatory, and their admission would be unfairly prejudicial to Ford. ANY USE OF OR REFERENCE TO RALPH A. FROEHLICH'S MAY 8, 2000 DEPOSITION TESTIMONY IS BARRED BY A PRE-EXISTING PROTECTIVE ORDER A. A Pre-existing Protective Order and Subsequent Enforcing Order Bar Use of the Froehlich Deposition in This Case. Upon information and belief, Plaintiffs intend to offer the May 8, 2000 deposition testimony of Froehlich ("Froehlich deposition" or "deposition") either by itself or through an expert witness called by Plaintiffs. However, the Froelich deposition, and the conclusions contained therein, is subject to an Agreed Protective Order in the Court of Common Pleas of Montgomery County, Ohio ("Protective Order"). A true and correct copy of the Protective Order is attached as Exhibit A. { DOCX )

2 The Froehlich deposition was taken by another plaintiff as a cross examination pursuant to the Ohio Rules of Civil Procedure in the Terry case, a completely unrelated workers' compensation matter in the Court of Common Pleas of Montgomery County, Ohio. The Terry case is unrelated to the instant case. In Terry,Froehlich was retained as an independent expert by counsel for General Motors Corporation. Here, Froehlich has not been named as an expert by any party. Prior to Froehlich's May 8, 2000 deposition, counsel for General Motors Corporation and plaintiffs entered into a Protective Order preventing any dissemination, disclosure, or retention of Froehlich's deposition, as well as other related materials. See Exhibit A. After learning that the transcript was being distributed in violation of that Protective Order, Ohio Common Pleas Judge Patrick Foley issued an Entry Enforcing Agreed Protection Order protecting the transcript and other documents from dissemination ("Enforcing Order"). See Enforcing Order, attached as Exhibit B. Any attempt by Plaintiff to utilize the Froehlich deposition in the present trial is in direct violation of Judge Foley's Enforcing Order. B. Justice Freedman Has Ruled The Protective Order Is Subject To Full Faith And Credit. Plaintiffs in the Sharkey case (Index No /00) tried to present Mr. Froehlich's deposition testimony. In Sharkey, Justice Helen Freedman considered the arguments and determined that full faith and credit should be given to Judge Foley's Order: MS. BOYD:...Before [Ralph Froehlich] testified, counsel for General Motors and counsel for plaintiff entered into a stipulated protective order, which was signed by the court. Subsequent to his testimony, the Court became aware that the transcripts and videos of that testimony were being disseminated and issued an order enforcing that protective order, and requiring that all copies of the transcripts and the videos be retumed to the Ohio court... THE COURT: If it is subject to a protective order -... [this] Court grants full faith and credit to the order of judges of other states... See Sharkey Trial Tr. attached as Exhibit C. The Sharkey plaintiffs were prohibited from introducing the May 8, 2000 deposition testimony of Froehlich into evidence, including any mention of his opinions presented during the deposition. The Sharkey plaintiffs were even prohibited from mentioning Froehlich's name in connection with the defendants. See Exhibit "C." Nothing has changed that would warrant re-litigating Justice Freedman's ruling. The Agreed Order remains in place. Froehlich has not been retained as an expert by any party in this case, and Ford has not adopted his testimony. Therefore, this Court should grant full faith and credit to Judge Foley's Enforcing Order and exclude from evidence the May 8, 2000 deposition testimony of Froehlich, as well as any reference to conclusions or opinions derived during that deposition. 2

3 RALPH FROEHLICH'S DEPOSITION TESTIMONY AND THE STATEMENTS OF STANLEY FOWLER CONSTITUTE INADMISSIBLE HEARSAY Upon information and belief, Plaintiffs may seek to introduce the December 3, 1979 issue of Businessweek magazine, which contains an article entitled, "The Growing Need for Asbestos Substitutes." The article contained a ten-word portion of a statement attributed to Stanley B. Fowler, a then-staff engineer for GM's Buick Division, which read as follows: "[t]his puts all sorts of harmful fibers in the air...." The declarant, Stanley Fowler, has never been associated with Ford. The statement is hearsay within hearsay, and it is not subject to any exception to the hearsay rule. As stated above, it is also anticipated that Plaintiffs will submit or reference Froehlich's deposition. Evidence of or discussion regarding this deposition constitutes inadmissible hearsay that must be excluded from evidence. No exception to the hearsay rule will apply to permit Plaintiffs to introduce this testimony. Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. See 5 Wigmore, Evidence 1361 (Chadboum rev. 1974). Plaintiffs, in the instant action, have the burden of proving that various automotive components release asbestos fibers and that said release was sufficient in terms of fiber size and quality to be a substantial contributing factor to plaintiffs disease. This is an issue that will be resolved by science and medicine. However, Plaintiffs may seek to introduce the Fowler "statement" that "[t]his [sanding] puts all sorts of harmful fibers in the ail' to prove the truth of their allegations. They are also anticipated to offer Froehlich's deposition transcript, either by itself or through an expert witness. Both Froehlich's transcript and the Fowler statement are textbook hearsay and should be excluded. In the asbestos case, Polito v. Anchor Packing Co., Justice Raymond E. Cornelius noted that, "[t]he Court of Appeals has determined that the proponent of hearsay evidence must establish the applicability of a hearsay-rule exception, which, in the case of admissions would include proof that an employee, for example, was actually authorized to make a statement in order for it to be binding upon their employer in the context of a legal action." 2 Misc. 3d 518, 769 N.Y.S.2d 695 (2003) (quoting Tyrrell v. Wal-Mart Stores,97 N.Y.2d 650, 737 N.Y.S.2d 43 (2001)). Froehlich's and Fowler's statements do not fall under the party admission exception as neither Froehlich nor Fowler was an agent of Ford. Additionally, the purported materials attributed to Froehlich and Fowler lack any guarantees of the trustworthiness required for the admission of hearsay. Plaintiffs have given no indication that Mr. Fowler or Mr. Froehlich will be available as witnesses to testify concerning these statements, and/or that the statements are accurate, or what the underlying basis was, if any, for the conclusions. The purported statement and transcript that Plaintiffs may seek to introduce cannot be tested by cross-examination. Moreover, because Fowler was not under oath when he is purported to have made the "statement" in question, there is no assurance of its reliability, even if made Finally, no one, including the trier of fact, has had or will have the opportunity to examine the basis for this "statement," even if it was actually given and accurately quoted. For all of these reasons, any statements or testimony proffered from Froehlich and Fowler lacks guarantees of trustworthiness. As a result, such statements and any reference to these materials should be precluded DOCX } 3

4 A. Neither Froehlich Nor Fowler Was An Agent Of Ford Motor Company, And Their Statements And Testimony Cannot Be Considered Party Admissions. The testimony of Froehlich as an independent expert of GM in a different matter cannot be used against as a party admission in this case. Moreover, there is no evidence that Fowler, a GM employee, was an agent of Ford. In Kirk v. Raymark Indus., Inc., 61 F.3d 147 (3d Cir. 1995), the Third Circuit held, "[we] are unwilling to adopt the proposition that the testimony of an expert witness who is called to testify on behalf of a party in one case can later be used against that same party in unrelated litigation, unless there is a finding that the expert witness is an agent of the party and is authorized to speak on behalf of that party." The holding is premised on the fact that Federal Rule of Civil Procedure 801(d)(2)(C) requires the declarant be an agent of the partyopponent against whom the admission is offered. Id.; see also Schering Corp. v. Pfizer Inc., et al., 189 F.3d 218 (S.D.N.Y. 1999). "Because an expert is charged with the duty or giving his or her expert opinion regarding the matter before the court, we fail to comprehend how an expert witness, who is not an agent of the party who called him, can be authorized to make an admission for that party. Id.; see also Michael H. Graham, Federal Practice and Procedures: Evidence 6722, at 502 (Interim Ed. 1992). The requirement that the declarant be an agent "precludes the admission of the prior testimony of an expert witness where, as normally will be the case, the expert has not agreed to be subject to the client's control in giving his or her testimony." Id. (quoting Sabel v. Mead Johnson & Co., 737 F.Supp. 135, 138 (D. Mass 1990)); see also Lowen v. Great Atlantic & Pacific Tea Company, Inc., 223 A.D.2d 534, 636 N.Y.S.2d 399 (2d Dept. 1996). "In theory, despite the fact that one party retained and paid for services of an expert witness, expert witnesses are supposed to testify impartially in the sphere of their expertise. Thus, one can call an expert even if one disagrees with the testimony of the expert." Id. The retention of an expert does not elevate that individual to the level of an agent. The general principles of agency require that the agency relationship is a consensual, fiduciary one between two legal entities, where the principal has the right to control the conduct of the agent and the agent has the power to affect the legal relation of the principal. See Restatement (Second) of Agency 1 cmt a. There is no evidence that Fowler or Froehlich were under the control of or agents of Ford, or that their opinions were anything other than independent opinions, making any statements or testimony inadmissible in the present matter. They have never been employees of Ford, nor have they been retained to speak on behalf of Ford. They were never authorized to make, and did not make, any decisions on behalf of Ford. Moreover, they have not been disclosed as experts in this matter, or in other matters in this trial group. As such, they have no familiarity or connection with this particular case and are not fact witnesses with regard to Plaintiffs. Kirk is factually similar to the instant case. In Kirk, plaintiffs were permitted, over the objections of defendant, Owens-Corning, to introduce in their case the prior trial testimony of Dr. Burgher from an unrelated New Jersey Court case. Dr. Burgher testified as an expert witness for Owens-Corning in the New Jersey case, but not in Kirk. Plaintiffs, by introducing Dr. Burgher's prior testimony, were attempting to impeach opinions 4

5 advanced by Owens-Corning. The Third Circuit held that Dr. Burger's prior his testimony was hearsay and its admission of in Kirk was an error. The court opined: 61 F.3d 147, 164 Because an expert witness is charged with the duty of giving his or her expert opinion regarding the matter before the court, we fail to comprehend how an expert witness, who is not an agent of the party who called him, can be authorized to make an admission for that party. See Michael H. Graham, Federal Practice and Procedure: Evidence 6722, at 502 (Interim Edition 1992) (the authority of the agent to speak as to a subject must be established at trial). We are unwilling to adopt the proposition that the testimony of an expert witness who is called to testify on behalf of a party in one case can later be used against that same party in unrelated litigation, unless there is a finding that the expert witness is an agent of the party and is authorized to speak on behalf of that party. Even courts which have found certain limited circumstances (not present in this case) that an expert is an agent or that expert testimony is an adoptive admission, have held that the ultimate rule adopted by the Third Circuit in the Kirk case is sound. If expert testimony from unrelated prior litigation were admissible as an admission against the proposing party, one could quickly see the potentially debilitating effects on the use of expert testimony. Onti Inc. et al v. Integra Bank et al., 1998 WL (Del.Ch. 1998). See also Kreppel v. Guttman Diagnostic Institute, 1999 WL (S.D.N.Y. 1999). In Onti the plaintiffs, at the close of trial, designated deposition testimony of two of defendant's experts who testified at trial as Defendant's party admissions. Defendant attempted to exclude the testimony on the basis of the Kirk decision. The Delaware Court of Chancery permitted the designation based on its fmding that an agency relationship did exist because the defendant retained and listed the expert as a trial witness, and thus adopted or acquiesced in the expert opinions. The courts in both Onti and Kreppel recognized that their respective cases were factually distinguishable from Kirk in that the expert testimony at issue in both Onti and Kreppel involved experts retained by the defendant for the subject trial, not an expert used in another trial. These cases did not involve introduction of expert reports or testimony from prior unrelated cases. See Onti and Kreppel. In fact, the court in Onti specifically recognized that "[flitting the agency to the scope of the expert's expertise, the litigation related to the cause of action brought and the party who hires and places the expert's testimony at issue ensures that the party is not at risk of having almost any statement by its experts attributable to it as admissions as a party opponent." Onti. (emphasis added). Further, it is clear that Stanley Fowler, in his capacity as an engineer for GM, was not a Ford's agent, was not authorized by Ford to make pronouncements on alleged epidemiological links between automotive friction products and disease, nor did Ford ever adopt his statement on the issue of product specific causation. Thus, Fowler's "statement" is not admissible under any exception to the hearsay rule. Accordingly, the deposition testimony of Ralph Froehlich and statements made by Stanley B. Fowler, as well as the statements and any references thereto, should be excluded. ALLOWING FROELICH'S TESTIMONY OR FOWLER'S "STATEMENT" 5

6 INTO EVIDENCE WOULD UNFAIRLY PREJUDICE FORD As set forth above, there is no evidentiary basis whatsoever for admission of the purported Fowler "statement" or Froehlich's testimony as to Ford. It is clear that the substance of these purported conclusory statements goes to the central disputed issue in the case the alleged connection between exposure to automotive friction products and disease. Accordingly, admission of these conclusory statements on the ultimate issue in the case as to any other party would be unfairly prejudicial to Ford, and that prejudice could not be overcome by a limiting instruction. Admission of these statements as against any party would effectively deprive Ford of a fair trial. Moreover, their admission would require Defendants to put on extensive evidence as to the context and/or lack of validity of those statements, leading to a trial-within-a-trial. Therefore, under New York law, the statements should be excluded. CONCLUSION To sum up, it is clear that neither the testimony of Ralph A. Froelich nor the statements by Stanley Fowler are admissible under any exception to the hearsay rule. Additionally, the deposition testimony of Ralph A. Froehlich, taken on May 8, 2000, as well as any mention of Froehlich or his opinions is barred by a preexisting protective order. For this Honorable Court to allow these statements in as evidence, in even the most limited capacity, would so unduly prejudice Ford, that an order for a new trial would be the only cure to prejudice suffered by the Ford. Therefore, Ford respectfully requests that this Court grant this Motion in limine in its entirety and exclude Fowler's and Froehlich's statements and all references thereto. Respectfully submitted, Alexandra Bys itskaya 6