FILED: NEW YORK COUNTY CLERK 03/04/ :08 PM INDEX NO /2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 03/04/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X Index No.: /2015 IN RE: NEW YORK CITY ASBESTOS LITIGATION : NYCAL X (Mendez, J.) MARY MURPHY-CLAGETT as Temporary : Administrator for the Estate of PIETRO MACALUSO, : : Plaintiffs, : -against- : : A.O. SMITH CORPORATION, et al., : : Defendants. : X PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT BURNHAM, LLC'S MOTION IN LIMINE TO EXLUDE PURPORTED "HEARSAY TESTIMONY" 1 of 9

2 Plaintiff respectfully submits this opposition to Defendant Burnham LLC's ("Burnham) motion in limine for an order precluding Plaintiff from using certain purported "hearsay" testimony of Plaintiff Pietro Macaluso at trial. As Mr. Macaluso's transcript makes clear, however, any statements in which he describes his knowledge of his exposure to asbestos were made as part of his general knowledge, and not (as incorrectly argued by Burnham) pursuant to other's informing him that what he worked on was asbestos. As shown, infra, decisions in the New York City Asbestos Litigation have addressed and rejected the very argument Burnham now makes. The result in this instance should be no different. ARGUMENT L PLAINTIFF'S STATEMENTS REGARDING HIS KNOWLEDGE OF WORKING ON AND AROUND ASBESTOS WERE MADE PURSUANT TO HIS GENERAL KNOWLEDGE OF ASBESTOS, AND WERE NOT BASED ON THE HEARSAY INFORMATION OF OTHERS A. Mr. Macaluso's Testimony To Working With Asbestos, A Fact He Personally Learned From His Decade-Long Work Burnham's blanket efforts to exclude Mr. Macaluso's relevant testimony regarding certain products' composition, at best, is overbroad.1 Indeed, far from basing his testimony on the asbestos content of products he regularly was exposed to over the course of a decade on "rank hearsay," in actuality, Mr. Macaluso testified that, as a helper to his neighbor's general construction company, he was working with and around knowledgeable tradesmen such as plumbers, electricians and painters during work, inter alia, renovating and removing furnaces and heating equipment. [Ex. 1, Relevant Excerpts from The Discovery Dep. Of Pietro Macaluso, 83:16-85:1; 89:12-90:17]. 1 Indeed, Burnham fails to provide even a citation it claims is hearsay, and instead cites generally to over forty pages of testimony, seemingly to represent (incorrectly) that this testimony is hearsay. As shown, infra, this is not accurate in the slightest). 1 2 of 9

3 Indeed, Mr. Macaluso specifically testified that his work removing furnaces and heaters was done with the plumbers themselves: Q: What type of work were you assisting [plumbers] in on furnaces and heaters? A: Removing the - - removing it out to the Dumpster. smashing out the unit, the old units, and.... Q: And was - - did you have somebody else helping you do this? A: Yeah, generally, there was - - generally, because I was the - - I was the go-to guy, I had responsibility with cleaning up the site, basically. So sometimes I was doing it by myself; other times there were other plumbers there doing it that will - would jump in as soon as the old stuff was pulled out. [Id at 90:8-17; 93:24-94:6]. Mr. Macaluso also testified to scraping these heating units down to remove "white insulation" from them, and also used a sledgehammer or crowbar to break these heating units apart [Id at 220:24-221:17]. Mr. Macaluso testified that this white insulation was asbestos. [Id at 221:17]. Importantly, when questioned as to where he became aware that this material was asbestos, Mr. Macaluso did not testify that a person or people told him the material was asbestos, but stated that he learned it was asbestos through his years on the job. [Id. at 221:18-222:2]. Also relevant to the instant motion, Mr. Macaluso testified that, after his work in renovation and construction, he received electrical training culminating with his becoming a certified of' electronics technician, a degree he acquired after a combination of classroom and hands-on experience. [Id at 100:14-101:17]. 2 3 of 9

4 B. New York Law Permits Lay Testimony Of A Technical Nature When The Witness Has Acquired Relevant Specialized Knowledge Or Experience These facts aside, from a legal standpoint, Burnham has conspicuously overlooked the existing law in New York as well as the growing judicial trend in other jurisdictions favoring the admissibility of lay opinions of a technical nature when the witness possesses sufficient and relevant specialized knowledge or experience to provide the opinion and the opinion is appropriately related to that specialized knowledge and experience. It is well settled under New York law that the sworn testimony of the plaintiff is sufficient to submit an issue to the jury: [t]he deposition testimony of a litigant is sufficient to raise an issue of fact so as to preclude the grant of summary judgment dismissing the complaint... The assessment of the value of a witnesses' testimony [here, the plaintiff himself] constitutes an issue for resolution by the trier of fact, and any apparent discrepancy between the testimony and the evidence of record goes only to the weight and not the admissibility of the testimony. See, e.g. Dollas v. W.R. Grace & Co., 225 A.D.2d 319, 321 (1" Dept. 1996)(emphasis added). In order to prevent the issue from being presented to the jury, the burden rests with the defendant, not the plaintiff, to provide evidence sufficiently demonstrating the absence of any material issue of fact. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980); Cf Taylor v. A.C. & S., Inc., 304 A.D.2d 403, ("AO failed to proffer any evidence that its asbestos products were not being used residually in the marketplace by various companies in the 1980's and 1990's, after it ceased manufacturing and selling such products."). In New York, the competence of lay testimony to establish facts that are analogous to the knowledge of component parts and insulation containing asbestos are abundant. The principle was best stated by the New York Court of Appeals in the 19th century case Greenfeld v, People, 85 N.Y. 75, 83-85(1881): 3 4 of 9

5 Where the witness was asked to state "what the substance on the was" stone (being blood), the Court wrote that "[t}he conclusion, therefore, is a rational one, that in matters of common observation, where persons have a special opportunity to learn from the nature of their avocations or otherwise although not strictly experts, their conclusion as to fact is admissible, the weight to be given to the evidence being governed by the circumstances, and by the experience and knowledge of the witness as to the subject matter of the inquiry", and explaining "[i]t is not difficult to perceive that there are many substances which are commonly known, in regard to which a witness may testify, although he is unacquainted with their ingredients or chemical properties. Many of these would be familiar to those who had occasion to notice them frequently than to others, and hence they could testify more directly and positively in regard to the same. But to hold that no one but an expert or a scientific person should be allowed to speak on such subjects, would be establishing a stricter rule than is authorized by law. While, then, inexperienced persons and those comparatively ignorant may be able to testify in reference to such substances, the weight to be given to their evidence must of course, depend on the circumstances and their knowledge of the matter. This well-established law has been applied frequently in the New York City Asbestos Litigation ("NYCAL") where, as here, plaintiffs who had acquired general knowledge via their background and work, were able to testify to the asbestos content of products they worked with. See, e.g.,kneev. A.W. Chesterton Co., 52 A.D.3d 355, (1st Dep't 2008)("The deposition testimony of plaintiffs decedent showed that he was exposed to gaskets and gasket materials containing asbestos while working on a ship known as the Constellation at the Brooklyn Navy Yard, that dust from the asbestos gaskets was pervasive, and that he breathed it. Deposition testimony of the plaintiff and a second witness, from an unrelated asbestos litigation and the plaintiff from a second unrelated asbestos litigation describes work involving gaskets on the same ship, under the same conditions, within the same time period, and identifies appellant as the manufacturer of the gaskets."); Klopsis v. A.O. Smith 8"ater Prods. Co. (Jn re 4 5 of 9

6 NYCAL), 16 A.D.3d 125, (1st Dep't 2005) ("the deposition testimony of a deceased plaintiff in another action was admissible in opposition to its motion for summary judgment. This testimony was sufficient to defeat the motion because it offered facts and conditions from which Goodyear's liability could reasonably be inferred. In particular, it showed that the deponent had worked on at least one of the same ships as plaintiff during the period of his alleged exposure to asbestos fibers, and his testimony placed the use of asbestos gasket material in the area where plaintiff worked."). Directly on point with this recognized jurisprudence is Justice Heitler's decision on this exact issue in McCloskey v. A.O. Smith Water Prods., Decision & Order *1 (Sup. Ct. NY County, Sept. 19, 2013 (Heitler, J.) [attached as Ex. 2]. There, Justice Heitler, then-presiding judge over the NYCAL with responsibility over the law of the entire docket, rejected the defendant's argument that the plaintiff could not testify to his belief that the defendant's gaskets contained asbestos, finding that such an issue was expressly left for the finders of fact. Id. at *4-5 (relying on plaintiff's testimony that "I was told by a lot of people and it was a standard thing back then that it was gaskets, gasket material was asbestos, contained asbestos. It was general knowledge" knowledge"). Even more recently, Justice Shulman denied an identical motion to the instant one based on a plaintiff's testimony that he had acquired general knowledge through his work as a welder that certain insulation contained asbestos. [Ex. 3, Order, McGlynn v. Aerco Int'l, et al, Dec. 4, 2017, at 5]. Outside of New York, the principles stated above are also well-settled. UnitedStatesv. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) ("lay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction...such circumstantial proof may include evidence of the physical appearance of 5 6 of 9

7 the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence") Hamburger y. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir. 2004)("lay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition") (8th United States v. Westbrook, 896 F.2d 330, Cir.) ("[b]oth [lay] witnesses state that they had used the substance, described its effects, and said that it was amphetamine...circumstantial evidence of a drug's identity may include opinion testimony of a witness who couples past use with present experience with the substance in question") United States v. Sanchez DeFundora 893 F.2d 1173, 1175 (10th Cir. 1990) (affirming the principle that lay testimony and circumstantial evidence may be sufficient for a jury to find "that a substance was identified beyond a reasonable doubt") United States v. Woodruff 296 F.3d 1041, 1049 (11th Cir. 2002)("We (" are likewise unconvinced by Woodruff's argument that the government presented insufficient evidence to establish that the weapon Woodruff used during the robberies was in fact a firearm capable of expelling a projectile by the actions of an explosive, within the meaning the government need not show to a scientific certainty that a defendant is carrying a device that fires projectiles by means of an explosive...indeed, the government need not offer the gun itself into evidence or produce an expert witness to identify a 'firearm.'...the Government must present sufficient testimony, including the testimony of lay witnesses, in order to prove beyond a reasonable doubt that a defendant used, possessed or carried a 'firearm' as that term is defined for purposes of [statute]") Faced with this legion of case law in opposition to Defendant's application, Bumbam is forced to rely on merely two cases, though neither address the argument at issue. For example, in Treacy v. Amchem Prods., Inc., 2018 WL *1 (Sup. Ct. NY County Feb. 27, 2018), Justice 6 7 of 9

8 Billings denied a defendant's motion for summary judgment where the plaintiffs evidence (consisting of testimony and documents) created an issue of fact as to the existence of defendant's asbestos-containing product. Of note, in that case, the plaintiffs belief that he worked with asbestos-containing tile was not based on his own experience and generalknowledge gained from his employment, but from the strict hearsay statements of individuals on the job as well as later news accounts. Id. at *1. Such basis is a far cry of Mr. Macaluso's decade of experience working with materials, as well as his later training and education in the electronics field. As such, this case does not negate the case law regarding a lay witness's ability to testify about technical areas within his or her experience. The same holds true for the other case cited by Defendant, In re New York City Asbestos Litig. (Brooklyn Naval Shipyard Cases), 593 N.Y.S.2d 43 (1st Dep't 1993). The First Department in that case, however, merely reiterated that when, unlike here, the only evidence establishing that a product contained asbestos was based on hearsay, then that evidence was inadmissible.2 Id. at 50. The instant Plaintiff, by contrast, who is permitted to testify about technical knowledge gained through his work experience, will also be relying on other evidence to confirm these facts, such as defendants' own documents and testimony. As Burnham has failed to meet its burden of demonstrating under the law that Plaintiff's testimony constitutes inadmissible hearsay, this testimony should be presented to and considered by the jury. 2 Curiously, Defendant also relies on the Echeverria case, which held that admitting statements in medical records as admissions was reversible error when used outside of diagnosis and treatment to prove the central issue of that case. Such a case certainly does not support Defendant's instant motion, and indeed is in stark opposition to Burnham's attempt to admit similar, non-diagnostic statements from the instant Plaintiff" Plaintiff's medical records. 7 8 of 9

9 CONCLUSION As New York law is clear that a plaintiff's lay testimony regarding technical facts learned as part of the "general knowledge" of his field does not constitute inadmissible hearsay, Plaintiff respectfully requests that Defendant Burnham LLC's motion in limine be denied in all respects, as well as grant all relief the Court deems just and proper. Dated: New York, NY March 4, 2018 SIMMONS HANLY CONROY Attorneys for Plaintiff James. Kramer, Esq.. -Daniel P. Blouin, Esq. 112 Madison Ave., 7th Fl. New York, NY of 9