February 27, Plaintiff s motions in limine in the above-captioned matter on behalf of A.O. Smith Water Products

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1 ATTORNEYS AT LAW SN Eckert Seamans Cherin & Mellott, LLC 1EL Four Gateway Center FAX Mulberry Street, Suite Newark, NJ February 27, 2018 Misha Shah, Esq. (973) 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: Opposition to Plaintiff s Motions in Limine on behalf of A.O. Smith 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) Dear Justice Mendez: Eckert Seamans Cherin & Mellott, LLC respectfully submits this letter in opposition to Plaintiff s motions in limine in the above-captioned matter on behalf of A.O. Smith Water Products Smith" Co. (hereinafter "A.O. Smith"). Combined with a motion in limine seeking to limit evidence relating to boilers produced by H.B. Smith, Plaintiff's motion seeking to preclude or limit A.O. Smith's corporate representative, Bradley Plank's testimony, appears to be part of an overall effort to suppress the truth. In the within motion, Plaintiff contends Mr. Plank is an incompetent witness because he does not have "personal knowledge" of the products manufactured by A.O. Smith during the relevant time period ( ) in this matterl. Plaintiff s motion lacks both substantive and legal merit, it misrepresents relevant case law, and hides important facts known to Plaintiff s counsel. The motion should be denied. I See 13 of Bradley Plank's affidavit attached as Exhibit A. 1

2 First, seeking the preclusion of a corporate representative for lack of "personal knowledge" of the subject matter of his testimony rests on assertions that do not arise from the actual legal standard. Plaintiff's disingenuous 'personal knowledge' objection, if upheld, would place improper artificial limitations on corporations and deny A.O. Smith due process in this trial. The absurdity of Plaintiff's position is made clear by its logic. If the proposed standard was to be adopted, a corporation would have to instruct its employees to live forever, because once they die, the corporation would forever lack the ability to defend itself in lawsuits. This is most egregious in the present matter, in which Plaintiff seeks to have the jury allocate liability to a company that had nothing to do with the alleged injury. New York Corporate Representative Law The concept of corporate personhood is a well-established legal fiction. See Toren v. Anderson, Kill & Olick, 185 Misc. 2d 23, 26, 710 N.Y.S.2d 799, 801 (N.Y. Sup. Ct. 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. New York law recognizes that unlike "natural persons," corporations cannot give testimony and therefore must act through the designation of authorized representatives. I_d. 710 N.Y.S.2d at 801 (citing Oliner v. Mid-Town Promoters, Inc., 2 N.Y.2d 63, 64, 138 N.E.2d 217, 217, 156 N.Y.S.2d 833, 833 (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). It is counterintuitive and contrary to the law and the rules of court to require a corporation to designate a representative to testify on its behalf, but then prevent the corporations' testimony from being accepted into evidence when the facts precede the representative's 2

3 involvement with the company or even the representative's lifetime. 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 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. Personal knowledge may be acquired without direct, first-hand knowledge of the events in question. See Gucci America, Inc. v. Exclusive Imports Int'1, 99-cv-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 t' 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. Say. 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."). 3

4 Similarly, in determining the applicability of the business records exception, CPLR 4518(a) denotes that courts do not require the person who actually created the business record in question provide testimony authenticating the document in question. 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 4518:2 (citing People v. Kennedy, 68 N.Y.2d 569, 510 N.Y.S.2d 853, 503 N.E.2d 501 (1986); Cornier 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 4518:2. Indeed, "[t]here would be little or no purpose to the hearsay exception if the maker [of the record] were a required foundation witness." IA (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 for the use of the hearsay exception). 4

5 Likewise, 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 personally involved." 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 other sources.'" 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,affd, 166 F.R.D. 367 (M.D.N.C.1996)). As the Tailored Lighting court stated: "[U]nder Rule 30(b)(6), the deponent 'must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed... as to the relevant matters.'" subject S.E.C. v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992) (quoting Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Resources Auth., 93 F.R.D. 62, 67 (D.P.R.1981); Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989)). "[T]he duty to present and prepare a Psule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in involved." which that designee was personally Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (quoting United States v. Taylor, 166 F.R.D. 356, 361, agd, 166 F.R.D. 367 (M.D.N.C.1996)). The designee must be prepared "to the extent matters are reasonably available, whether sources." from documents, past employees, or other IL (citations omitted). If the designee does not possess personal knowledge of the matters identified in the notice, the corporation on whose behalf the designee is testifying must prepare the designee so that he may corporation." provide "knowledgeable and binding answers for the Gucci America, Inc. v. Exclusive Imports Int'1, 2002 WL , *8 (S.D.N.Y.2002). Id. at 349. Furthermore, as recognized by the court in Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 5

6 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 would complain he is unable to obtain information required to prove his case. In the NYCAL and in all litigation in NY courts, Plaintiffs demand that a corporation designate and produce a representative to provide testimony regarding products historically manufactured or supplied by the corporation. They should not, thereafter, be permitted to argue "lack of personal knowledge" to seek to preclude that representative from testifying regarding the corporate knowledge he possesses that may be unfavorable to the plaintiff's claim. The CPLR and the federal rules do not contemplate such an anomalous and unfair result. This Court should reject the Plaintiff's attempt to deny this (and/or any) defendant's corporate representative's testimony at trial based on procedural due process. Further, to the extent the Plaintiff's counsel relies on an unpublished decision (In Re: New York City Asbestos Litigation, 2017 N.Y. Slip Op ), that decision is neither binding nor consistent with NY law. Quite remarkably, Plaintiff's counsel served A.O. Smith with a subpoena ad testificandum (attached as Exhibit B) demanding A.O. Smith's corporate representative (and with full knowledge that such person is Mr. Plank) appear to testify as a witness in this matter, at the same time Plaintiff seeks to preclude the same witness from testifying to the corporate knowledge he possesses. Aside from being internally inconsistent, the preclusion of Mr. Plank's testimony would violate A.O. Smith's right to procedural due process. See U.S. Const. Am. 5. Unfortunately, this opposition also must address the many facts - omitted - or glossed over in Plaintiff's motion, such as when Plaintiff skips or simply omits portions of Mr. Plank's testimony, while citing other portions from the same transcript, which demonstrate that Mr. Plank 6

7 is fully familiar with the products both presently manufactured by A.O. Smith, as well as A.O. Smith products manufactured in the past. By way of further background, to become familiar with the historical records, Mr. Plank has testified he researched A.O. Smith's engineering drawings, parts lists, certifications, quality control records, and instruction manuals. SeePlaintiff's Exhibit B at p. 13:22-14:8 (attached but not cited by Plaintiff's counsel). Plaintiff also asserts Mr. Plank lacks personal knowledge because he cannot categorically state he has reviewed every individual document A.O. Smith ever created. While making that assertion, Plaintiff omitted the following testimony showing Mr. Plank reviewed relevant documents: Q. Did you ever undertake a review of the documents with regard to identifying equipment or component parts that at some time may have contained asbestos? A. Yes. S_e_ePlaintiff's Exhibit B at p. 14:13-21 (again, attached to plaintiffs motion but not cited). Within these materials, Mr. Plank testified the documents "could go back" to as early as the forties. M. at p. 17:2-8. This belies Plaintiff's allegation Mr. Plank does not have an appropriate basis to testify about A.O. Smith boilers during the relevant time period. All of the above demonstrate counsel does not wish for a fair trial so much as a NYCAL beat down session in which A.O. Smith is precluded from defending itself. Furthermore, the contention that Mr. Plank's knowledge was obtained through hearsay should also be disregarded because the documents Mr. Plank reviewed fall under, among other categories, business record and ancient document exceptions to hearsay. The ancient documents exception states that "a statement in a document is admissible if it is proved to be in existence for 7

8 more than thirty years, and its authenticity is supported by its proper custody or otherwise accounted for, and it is free from any indication of fraud or invalidity." NY Rules of Evidence, Article 8.07; See also, Fairchild v. Union Ferry Co., 121 Misc. 513, 518 (1923), aff'd 212 App. Div. 823 (1925), aff'd 240 NY 666 (1925); Estate of Essig v St. Holding Corp.,.,50A.D.3d A.D.3d 948, 949 (2d dep't 2008). Pursuant to the business records exception (CPLR 4518(a)), "any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." All of the documents reviewed fall under at least one hearsay exception - Mr. Plank's testimony should not be precluded. Finally, it should be further noted that A.O. Smith asked the Court, in one of its motions in limine, to preclude Plaintiff from mentioning, criticizing, or objecting to any testimony of A.O. Smith's corporate witness based on a purported 'lack of personal knowledge.' To which Plaintiff's counsel objected: "Plaintiff objects to defendant's motion in limine with respect to this item, to the extent we understand what defendant is seeking. Defendants are not entitled to vague blunderbuss rulings, in the abstract, on the admissibility of witness testimony that has not yet been proffered to the Court. If, at trial, Plaintiffs should assess witness' testimony, defendant may then object to it, and the Court may rule on the objection in proper context with the disputed witness(es) before it. Until then, such motions are not ripe for disposition because there is no way the Court can assess the testimony of a witness(es) that has not been proffered." Plaintiff seems to have lost any appreciation for his own objections to A.O. Smith's motion regarding the same issue. 8

9 Moreover, the market share theory is inapplicable to A.O. Smith as there will be no testimony regarding that issue. Additionally, A.O. Smith hereby joins in the motions in limine filed by all other non-adverse Defendants in this case and its consolidated actions to the extent such motions do not conflict with A.O. Smith or its interests. A.O. Smith reserves its right to supplement these motions in limine upon any further proposed evidence or motions submitted by Plaintiff. CONCLUSION For the aforementioned reasons, Plaintiff's request to preclude Mr. Plank's testimony and its objection regarding A.O. Smith's corporate witness' lack of personal knowledge should be rejected by this Court. Respectfully!, submitted, (rw) Misha Shah, Esq. Attorneys for Defendant, A.0 Smith Water Products Company 100 Mulberry Street Four Gateway Center, Suite 401 Newark, NJ (973) CC: Daniel P. Blouin, Esq. via NYSCEF and Federal Express Overnight Mail All Counsel via NYSCEF 9