FILED: NASSAU COUNTY CLERK 02/19/ :27 PM INDEX NO /2016 NYSCEF DOC. NO. 160 RECEIVED NYSCEF: 02/19/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU X X This Document Relates To: : Hon. Jack Libert : CARLOS CIFUENTES and MARTA CIFUENTES, : Index No : Plaintiff(s), : : -against- : : AMCHEM PRODUCTS, INC., et al., : : Defendants. : X X PLAINTIFFS' AFFIRMATION IN OPPOSITION TO DEFENDANT AMERICAN BILTRITE "OMNIBUS" INC.'S MOTIONS IN LIMINE STATE OF NEW YORK ) S.S.: COUNTY OF NEW YORK ) THOMAS M. COMERFORD, ESQ., being duly sworn, deposes and says: 1. I am an attorney licensed to practice in the State New York and before this Court, and I am an associate the law firm Weit2 & Luxenberg, P.C., attorneys for Plaintiffs. As such, I am aware the facts and circumstances this case. (" 2. I submit this affirmation in opposition to defendant American Biltrite Inc.'s ("American Biltrite" or the "defendant") "Omnibus" motion practice filed in this case. 3. The evidence defendant seeks to preclude in the motions in limine below is material and relevant to the prosecution this case. While defendant alleges certain evidence is inadmissible, irrelevant, and highly prejudicial, for the most part, defendant provides no valid justification for seeking to preclude certain matters from being admitted into evidence. In fact, defendant seeks to suppress evidence which is both relevant and admissible, and which is highly probative such that it outweighs any prejudice defendant claims it may suffer from its admission. In any event, in almost all cases, the decision whether to admit or preclude this evidence cannot be made in a pretrial vacuum

2 and should be made at trial after an fer pro and in context the issues being presented to the jury. In many instances, defendant's requests lack specificity and context making a pretrial preclusion both impossible and unnecessary. 4. In particular, the Plaintiffs respond in opposition to the specific evidence which defendants request that this Court suppress as follows follows:1 State--the-Art Evidence Regarding American Biltrite's Asbestos Information Association Membership.. Defendant's request seeks generally to preclude any discussion regarding its membership in or introduction evidence pre-dating its membership in the Asbestos Information Association, an asbestos trade association. This request in limine demanding an absolute and blanket exclusion several broad categories documents and other evidence pertaining to actions, information, and statements concerning an industry trade association is overly sweeping and inherently premature and should be denied outright. In addition, as no evidence has yet been produced, this in limine request remains entirely vague and preliminary. Regardless, New York law clearly permits such state--the-art evidence. For instance, in Polito v. Anchor Packing Co. (In re Seventh Jud. Dist. Asbestos Litig.), 2 Misc.3d 518, 769 N.Y.S.2d 695 (Sup. Ct., Monroe County 2003), Justice Cornelius explained that "[t]he defendants have made a motion in limine to exclude any documents emanating from the Industrial Health Foundation (IHF), Asbestos Textile Institute (ATI), Asbestos Information Association (AIA), and National Safety Council (NSC), or related deposition testimony, from being introduced into evidence at the trial the pending action. Generally, however, nonparty documents, consisting scientific reports or studies, are admissible as state--the-art evidence, not to establish actual knowledge health risks by an individual manufacturer, but rather to prove what such defendant should have known, either by conducting its own tests or being in contact with others in the industry." 2 Misc.3d at 521, 769 N.Y.S.2d at 699; see Penn v. Amchem Prods., 73 A.D.3d 493, 494, 903 N.Y.S.2d 1, 2 (1" Dept 2010) (defendant "failed to adequately warn Penn a potential danger that it knew or should have known about."). These documents are not hearsay because they matter asserted. Rather, as defendants know from repeatedly are not admitted to prove the truth the established that out--court statements are admissible to establish notice or the 37" foreseeability a dangerous condition or defect. Gelpi v. 3T Avenue Realty Corp., 281 A.D.2d having against them at trial, the publications they this type evidence introduced seek to preclude demonstrate the historical knowledge available to them concerning asbestos hazards. Hearsay is defined "as therein." an out--court statement fered to prove the truth the matter asserted Stern v. Waldbaum, Inc., 234 A.D.2d 534, 651 N.Y.S.2d 187, 188 (2d Dept. 1996); see also Matter Bergstein v. Board Educ., 234 N.Y.2d 318, (1974). An out--court statement that is fered for some purpose other than its truth is nothearsay. Id. at ; M..Martin, D. Capra, F. Rossi, New York Evidence Handbook 8.2 (1998). Under New York law, it is well 1 Plaintiffs will provide the Court with copies any rulings, transcripts, citations, documents, or other rulings referenced herein upon request. 2 13

3 392, 721 N.Y.S.2d 380, 381 (2d Dept. 2001); see also Splawn v. Lextaj Corp., NV, 197 A.D.2d (1" 479, 603 N.Y.S.2d 41, 42 Dept. 1993); Frederick v. Town Theresa, 99 A.D.2d 656, 472 N.Y.S.2d 56, 57 (4d¹ (4 Dept. 1984); M. Martin et al., New York Evidence Handbook ("out-court communications [admissible] as non-hearsay in order to show the recipient's state mind in cases involving notice a defect"). In fact, citing to analogous federal evidentiary rules, the Second Circuit in George ruled that a medical report on the dangers asbestos exposure was properly admitted to show defendant's knowledge those dangers, stating "[t]o be sure, an out court statement fered not for the truth the matter asserted, but hearsay." merely to show that the defendant was on notice a danger, is not George, 914 F.2d at 30; see also Hamilton, 96 F. Supp 2d at 354 (citing Stern v. Waldbaum, Inc., supra). that Additionally, defendants are attempting here to prohibit Plaintiffs from establishing that defendant(s) acted negligently by attempting to preclude Plaintiffs from demonstrating what defendant(s) should have known, i.e. what information was publically available. To accept this argument would allow defendants to overturn long established law in New York. New York law does not permit a company to put their head in the sand and hide, rather, companies are held to a higher standard, they are required to keep abreast new developments as it relates &' to their product, and customer. See Frankson v. Brown Williamson Tobacco Corporation, 4 Misc.3d 1002(A), 791 N.Y.S.2d 869 (Table), 2004 WL (N.Y. Sup.), 2004 N.Y. Slip Op (U) (2004), which holds, The admission state the art evidence must be weighed, however, in light the standard knowledge attributable to a manufacturer which is that an "expert in [the] field...[who has] a duty to keep abreast specific knowledge, discoveries and advances and [is] under a duty to make test to ascertain the nature [its] products. In this scientific age the manufacturer undoubtedly has or should have superior knowledge his product. In addition, a manufacturer has a duty to test fully and inspect its products to uncover all dangers that are scientifically is discoverable. (Internal citations omitted) This is embedded in the very foundation this state's law, and now, for this defendant to suggest that this law be overturned in a motion in limine is preposterous. State--the-art evidence has been consistently admitted to demonstrate what a defendant should have or could have known. Matter Seventh Jud. Dist. Asbestos Litzg. V. Anchor Packing Co., 2 Misc. 3d 518, 769 N.Y.S.2d 69 (2003 N.Y. Slip Op.23895). See George v. Celotex Corp.,,914 F.2d 26 (2nd Cir. 1990). Reference to Lobbying & Government Petitioning Activities. Defendant seeks to apply the Noerr-Pennington doctrine to bar relevant evidence in this case because the evidence allegedly relates to activities protected under the First Amendment. Defendant's attempt to exclude relevant evidence has no basis in law. The Noerr-Pennington doctrine exempts companies from under the federal antitrust laws for certain activities designed to influence government policy. It has no bearing or applicability in this case. In fact, that was the conclusion Hon. Manuel J. Mendez who heard, and ultimately denied, this very exact 3 13

4 request for in limine relief filed by American Biltrite as recently as a few months ago. His review.2 reasoning is instructive and is fered here as an exhibit for the Court's Defendant's effort therefore constitutes a grave distortion and misuse the Noerr-Pennington Doctrine, as it grants defendant no right to suppress the truth its historical knowledge the dangers associated with its products. Even assuming that the Noerr-Pennington doctrine applies in the context a products claim, it is well settled that neither it nor the First Amendment require the exclusion otherwise admissible evidence merely because the activities." evidence was generated in the course pursuing "constitutionally protected Nor does the fact that the Noerr-Pennington doctrine has been applied to common-law tort claims mean it can be used as a shield to preclude the use otherwise admissible evidence in all state tort claims. The Plaintiffs are not seeking to hold the defendant(s) liable for their activities. Rather, the Plaintiffs are seeking to hold the defendant(s) liable for knowingly selling a harmful product. The Plaintiffs seek to use documents related to the defendants participation in trade products' associations to demonstrate their knowledge their products dangers, not to suggest that they should be held liable for engaging in constitutionally protected activities. Of course, evidence what defendant(s) knew or should have known, about the hazards their asbestos-containing products, prior to or during the period Plaintiffs exposures, is relevant and admissible on issues defendants failure to warn. See generally Cover v. Cohen, 61 NY2d 261, 274 NYS2d 378, 385, 61 NE2d 261 (1984); Micallef v. Miehle Co., 39 NY2d 376, 385, 384 NYS2d 115, 120 (1976); Baker v. St. Agnes Hosp.,,7070 AD2d 400, 421 NYS2d 81, 85 (2d Dept. 1979). Accordingly, and for the reasons set forth in greater detail, infra, American Biltrite's motion should be denied. A. The Noerr-Pennington Doctrine Only Applies Where the Complained Conduct Forms the Basis the Suit 1. Introduction The Noerr-Pennington doctrine originates from the United States Supreme Court's decisions in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers America v. Pennington, 381 U.S. 657 (1965). The Court in those cases held that the First Amendment protected by groups aimed at the legislative branch from prosecution under the Sherman Act. In Noerr, the Court held that the Sherman Act does not apply to group efforts to persuade the legislature to take action that would produce a restraint or a monopoly, regardless the harmful commercial impact or unethical nature the 2 See Rogert Carilli, Ernest Gilbert, and Thomas Gallen Cases, Index Nos et al. (Sup. Ct. New York County, Sept. 29, 2017 at Oral Argument & Oct at Oral Argument and Decision) I' (Mendez, J.) (Ruling on 533: "THE COURT: All right, thank you both. I've heard your arguments, I looked at a couple cases. I read the relevant portions the case cited by [Plaintiff's counsel] regarding the fact that the Noerr-Pennington doctrine is not a rule evidence. Taking into consideration that the reason why this testimony is going to be placed before the jury is to show the defendants knowledge the dangerous nature its product and that this evidence is not unduly prejudicial. The Court will deny the motion by the defendant American Biltrite to preclude evidence or reference to American Biltrite's or government petitioning activities and will allow the plaintiff to present this evidence before this jury.") (Exhibit A) 4 13

5 conduct. Noerr, 365 U.S. at In Pennington, the Court held that a conspiracy by certain mine operators to drive other operators out business was shielded from the Sherman Act, at least to the extent they involved efforts to persuade the Secretary Labor to take actions favorable to their goals. Pennington, 381 U.S. at 670. In both cases, the immunity granted by the Court arose because the complained- conduct was directly related to the basis the suit; i.e., the Sherman antitrust prosecutions that arose because activity directed at the legislative/executive branch aimed at decreasing competition and forming a monopoly. 2. Noerr-Pennington is a Form Immunity, Not an Evidentiary Bar The Noerr-Pennington doctrine exempts companies from under the federal antitrust laws for certain activities designed to influence government policy. In other words, the "Noerr- Pennington doctrine confers immunity to private individuals seeking from the government." Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, ").). As the emphasized terms indicated, Noerr-Pennington was anticompetitive (54¹ (5 Cir. 2000) action (citation omitted) (emphasis added); North Carolina Electric Membership Corp. v. Carolina Power & Light Co., 666 F.2d 50, 52 (4th Cir. 1981) ("Noerr-Pennington -is by definition an exemption from anti-trust as a (1) form immunity for (2) companies seeks to apply the doctrine in both a different in a products action. facing originally conceived antitrust claims. Here, American Biltrite way and context - that is, as an evidentiary bar Simply put, there is no support for such an application Noerr- Pennington, as it does not require, and never has required, the per se exclusion otherwise admissible evidence. See Telecor Communications, Inc. v. Southwestern Bell Telephone Co.,,305 F.3d 1124, 1138 (10th Cir. 2002) ("Noerr-Pennington does not bar the introduction allevidence within its scope....") (emphasis in original). As noted by the Fourth Circuit, "the Noerr-Pennington -doctrine, as it has evolved, is an affirmative defense which exempts from anti-trust any petitioning activity designed to agencies." influence legislative bodies or governmental North Carolina Electric, 666 F.2d at 52; see also RRR Farms, Ltd. v. Amedcan Horse Protection Ass'n, Inc., 957 S.W.2d 121, 129 (Tex. App.- Houston [14 Dist.] 1997). In Pennington, the U.S. Supreme Court explained that, on one hand, "[j]oint efforts to influence public ficials do not violate the antitrust laws even though competition." intended to eliminate competition. United Mine Workers Amedca v. Pennington, 381 U.S. 657, 670 (1965). On the other hand, the Pennington Court deliberately reserved for trial judges the discretion to admit into evidence certain actions that cannot otherwise form the basis litigation under the Noerr-Pennington doctrine: It would course still be within the province the trial judge to admit this evidence, if he deemed it probative and not unduly prejudicial, under the established judicial rule evidence that testimony prior or subsequent transactions, which for some reason are barred from forming the basis for a suit, may nevertheless be introduced if it tends reasonably to show the purpose and character the particular transactions under scrutiny. Id. at 670 n. 3 (emphasis added). In North Carolina Electñc, supra, the defendant in an anti-trust plaintiffs' case objected to the plaintiffs attempts to obtain discovery its activities. While addressing the defendant's arguments, the Fourth Circuit observed that "the Pennington decision allows at least some that evidence to be admitted at trial if accompanied by a proper instruction." jury North Carolina Electñc, 666 F.2d at 53. Further, the court found that 5 13

6 evidence" "discovery this material may lead to admissible and that "[i]f the evidence is arguably admissible, certainly it should be discoverable." Id. In other words, the discretion to admit a defendants activities into evidence reserved to trial court judges under Pennington served as the basis for the Fourth Circuit's conclusion that the same material must also be discoverable. Courts from around the country have similarly found, in the antitrust context, that evidence activities, which may not form the basis for lawsuits under the Noerr-Pennington doctrine, are nevertheless admissible to demonstrate the purpose or character prior or subsequent actions. See, e.g.,,a.lexander Alexander v. National Farmers Organization, 687 F.2d 1173 (8th Cir. Carriers' 1982); Household Goods Bureau v Terrell, 452 F2d 152 (5th Cir. 1971); Confederated Tribes Siletz Indians Oregon v. Weyerhaeuser Co., No. CV PA, 2003 WL , *7 (D. Or. 2003) ("even if the state lands transaction could not itself have been a basis for, evidence regarding that transaction would likely have been admissible for other purposes, such as showing market share, the extent any log sources available to competitors, the scope the relevant market or markets, the manner in which Weyerhaeuser allegedly obtained and maintained its monopoly, the company's motives and intent, and to impeach credibility."). Indeed, "[i]t is well-settled that a plaintiff may introduce background evidence to establish a conspiracy." continuing course conduct or to cast light on the character an existing Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1305 (9th Cir. 1983); Independent Taxi Cab (" Operators Ass'n v. Yellow Cab Co.,,278 F.Supp. 979, 986 (N.D. Cal. 1968) ("Plaintiffs contend that Yellow's combination and conspiracy to monopolize is evidenced by its mergers and acquisitions competing companies. All the mergers and acquisitions were completed by This lawsuit pertains only to the period from March 9, 1957, to March 9, Evidence these past practices was admissible as background information to show a continuing course conduct."). Under Pennington and Rule 403 the Federal Rules Evidence, relevant evidence is admitted prejudice." unless "its probative value is substantially outweighed by the danger unfair See Merck-Medco Managed Care, Inc. v. Rite Aid Corp., 22 F.Supp.2d 447, 470 n.5 (D. Md. 1998) ("Unless the evidence is unduly prejudicial to the defendants, activities covered by the Noerr- Pennington doctrine are nevertheless admissible to prove matters such as motive, opportunity, intent.").3 and For instance, in C(pollone v. Liggett Group, Inc.,,668 F. Supp. 408 (D.N.J. 1987), 3 See also Alexander v. National Farmers Org., 687 F.2d 1173, 1196 (8th Cir. 1982); Telco Comm., Inc. v. S.W. Bell Telep. Co., 305 F.3d 1124 (10th Cir. 2002); Borough Lansdale v. Philadelphia Elec. Co.,,517 F.Supp. 218 (Dist. C. PA. 1981); MCI Communications Corp. v. American Tel. and Tel. Co.,,708 F.2d 1081, 1160 (7th Cir. 1983) ("MCI referred to AT & T's actions before the FCC only as evidence the purpose and character business decisions which had already been made and which were relevant to charges other than the filings state tariffs. 'Evidence activity that is protected by the Noerr doctrine may be admitted to show the purpose and character other activities if doing so is not overly prejudicial to the defendants.'" (quoting Feminist Women's Health Center v. Mohammad, 586 F.2d 530, 543 n. 7 (5th Cir. 1978), cert. denied, 444 U.S. 924 (1979)); Perrine v. E.I. du Pont (" de Nemours and Co.,,225 W.Va. 482, 552, 694 S.E.2d 815, 885 (W.Va. 2010) ("Although the Noerr-Pennington doctrine and West Virginia's Constitution provide a qualified immunity from suit to parties attempting to influence or encourage government action, neither the doctrine nor the Constitution precludes evidence such activity if the evidence is probative and not unfairly prejudicial. DuPont's reliance on regulatory decisions as a defense makes DuPont's communications with the agency relevant. In the instant action, the Court admitted evidence DuPont's communications with regulatory agencies because such communications confirmed the existence and the magnitude the contamination, were admissions made by a party opponent, 6 13

7 the United States District Court New Jersey held that representations by a party to Congress that could not be used as a basis for into evidence in the context a products under the Sherman Act could still be introduced suit. Specifically, the court explained: Plaintiff, at argument, claimed that it did not seek to establish for [furnishing misleading information to Congress], but rather fers it as evidence to support its allegations a continuing course deceptive conduct which this activity was just one small part. Whether such evidence is admissible requires a balancing its probative value against undue or unfair prejudice. Id. at 411. These guiding principles came together in the District Court Idaho's opinion in Adams v. U.S.,,C.iv.. Civ. No E-BLW, 2009 WL (D. Idaho 2009). In Adams, defendant DuPont sought exclusion its response to a publication the Environmental Protection Agency touching upon concerns over airborne disbursement a chemical herbicide. The plaintiff sought to introduce portions DuPont's response in which DuPont asserted that "the transport the herbicide by wind blown dust is 'not even a theoretical possibility."' Id. at *2..OnOn consideration DuPont's motion in limine such statements under Noerr-Pennington, the court noted that: The Noerr-Pennington doctrine applies to shield defendants from legal for claims based on their legitimate right to petition Government ficials. Here, there are no such claims. Instead, DuPont's response will be used for other purposes. For example... the statement is relevant to plaintiffs' claims misbranding and failure to warn, and shows the state DuPont's knowledge whichis relevant to many claims. Id. (emphasis added). According to the Adams court, "[t]his is just the sort use envisioned doctrine." by the Supreme Court when it set up the Id. The court further noted that, while 403," "the evidence must not run afoul Rule the probative value DuPont's response was substantial" "quite in the context the plaintiff's misbranding and failure to warn claims and that "DuPont has not identified a factor such as prejudice or confusion that would value." substantially outweigh that probative Id. Accordingly, the court rejected DuPont's attempt to invoke Noerr-Pennington and denied the motion. More broadly, evidence constitutionally protected speech is routinely admissible to show (" knowledge, motive and intent. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) ("The First Amendment... does not prohibit the evidentiary use speech to establish the elements (" a crime or to prove motive or intent."); Dawson v. Delaware (1992) 503 U.S. 159, 165 ("[T]he Constitution does not erect a per se barrier to the admission evidence concerning one's beliefs and associations... simply because those beliefs and associations are protected by the First Amendment."); Hrynda v. U.S. (M.D. Fla. 1996), 933 F.Supp. 1047, 1053 (noting "the abundance law throughout the country concerning the use speech as evidence in proving laws" violations conduct-based laws"). rebutted DuPont's claims that there is no f-site contamination and no need for remediation, and rebutted agencies' DuPont's defense/reliance on regulatory findings no unreasonable risk f-site contamination."). 7 13

8 This is precisely the scenario presented by the instant facts. Plaintiffs are not seeking to admit evidence related to American Biltrite's activities or representations to administrative agencies as the basis Plaintiff's product claims; rather, Plaintiffs are introducing these representations as evidence American Biltrite's conduct and knowledge about the hazards asbestos. 3. Cases Applying Noerr-Pennington Immunity Involve Conduct that Directly Gave Rise to the Litigation Unlike Noerr-Pennington and their progeny, there is no cause action here that relates to the fact that defendants(s) lobbied the federal government for favorable changes in the asbestos laws. Rather, Plaintiff is suing defendants for personal injuries incurred due to negligent conduct. That cause action has nothing to do with defendant's protected right to lobby the government, and the Noerr-Pennington -doctrine accordingly at 140 (Court rejected attempt to base a Sherman Act entirely activities seeking does not apply. See Noerr, 365 U.S. conspiracy on evidence consisting to influence public ficials); Pennington, 381 U.S. at 135 (no violation the Sherman Act can be based on mere attempts to influence the passage or enforcement laws). As the Seventh Circuit aptly stated: The Noerr-Pennington doctrine is concerned solely with the right to attempt to influence government action. It thus immunizes only those actions directed toward governmental agencies or ficials. MCI Communications Corp. v. AT&T, 708 F.2d 1081, 1159 (7th Cir. 1983). Accordingly, the court in MCI Communications held that the Noerr-Pennington doctrine did not preclude imposition on defendant for antitrust violations, because defendants conduct was not aimed toward governmental change (id. at 1160)-aâ clear distinction from the Noerr and Pennington decisions, where the antitrust violations alleged had stemmed directly from the defendants efforts Here, at the government. efforts to persuade the government to make favorable changes in the asbestos regulations do not form the basis Plaintiff's suit. Indeed, cases applying doctrine have done so in the context where the efforts themselves formed the cause action, e.g. Havoco Am., Ltd. v. Hollobow, 702 F.2d 643, 649 (7th to tortious interference with business relations claim where defendant's was conduct at issue, and defendant may have known such Cir.1983) (doctrine applied petitioning petitioning activity the would have an incidental adverse effect on plaintiff's business); Urban Prods. Int'l v. Nat'l Disposal Serv., 32 Ill. App. 3d 299, 305 (1st Dist. 1975) (unnecessary to consider application Noerr-Pennington where any illegal conduct in which defendants may have engaged was not the reason why plaintiff failed to obtain city contract); National Organization for Women, Inc. v. Scheidler, 1997 WL , *28-31 (N.D. Ill. 1997) (Noerr-Pennington doctrine shielded abortion clinic protester from clinic's claim tortious interference with business relations, where complained- conduct were protests outside clinic aimed at change in abortion laws); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 1998 WL , at *3 (N.D. Ill. 1998) (refusing to Noerr- apply Pennington to malicious prosecution suit); Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523, 525 homeowners' (N.D. Ill. 1990) (doctrine applied where land developer filed suit based on petitioning exercising to prevent proposed roadway; defendants were sued for nothing their right to petition their government); Mason v. Texaco, Inc. 741 F. Supp. 1472, more than 8 13

9 (D. Kansas 1990) (courts have invoked the doctrine only where the cause action itself is based on the act or filing a lawsuit, citing MCI Communications, supra). Indeed, in MCI Communications, the court held that conduct that eventually provokes government action or review does not alone call the Noerr-Pennington doctrine into play. MCI Communications, 708 F.2d at In this case, surely Plaintiff's asbestos-injury claim cannot call the doctrine into play, where Plaintiff's complaint does not allege that the resulted in Plaintiff's injuries. 4. Defendant(s) Lobbying Activity May be Admitted to Show Purpose or Character Nonexempt Activity As discussed, supra, in Pennington, the Supreme Court held that protected evidence under the character." Noerr-Pennington -doctrine may nonetheless be admitted if it showed "purpose and Pennington, 381 U.S. at 670 n.3 (emphasis added). Thus, "evidence activity that is protected by the Noerr doctrine may be admitted to show the purpose and character other activities if defendants." doing so is not overly prejudicial to the MCI Communications Corp. v. AT&T, 708 F.2d 1081, 1160 (7th Cir. 1983). In MCI Communications, supra, the Seventh Circuit held that admitted into evidence defendant's actions before the FCC, because such evidence was admissible as evidence the purpose and character decisions that were relevant to charges not based on defendant's First Amendment activities. Id. Other.Illinois federal courts have followed this course and admitted exempt evidence based on its propensity to show purpose and character other activities. As aptly reasoned in a recent Northern District case: Plaintiff does not seek to impose on defendants because they lobbied to change their common law duties to provide warning devices at crossings. Rather, he seeks the information to demonstrate awareness that duty.. That is a permissible use information. Thus, we will not disturb the Magistrate Judge's ruling on the Noerr-Pennington doctrine. Stalling v. Union PacificR.R Co., 2003 WL , at *2 (N.D. Ill. 2003) (emphasis in original). That is precisely the situation involved in the instant case-plaintiffs are not seeking the limited purpose establishing GM's motives in engaging in the anticompetitive conduct at issue in the lawsuit-such â use such evidence was permissible and was not prejudicial); to impose on defendants because they lobbied to alter their duties under federal asbestos regulations. Rather, Plaintiffs seek the information to demonstrate defendants awareness the danger from asbestos. As held above, that is a permissible use information. Id.; see also In re Brand Name Prescription Drugs Antitrust Litigation, 1995 WL , at *2 (N.D. Ill. 1995) (plaintiffs allowed to explore documents based on relevance grounds; while activity is afforded certain protections under the Noerr- Pennington doctrine, probative evidence such and character other activities, if such a use is not activity may be used to show the purpose unduly prejudicial to the defendants); GeneralMotors Corp. v. Johnson Matthey, Inc., 887 F. Supp. 1240, 1246 (E.D. Wis. 1995) (discovery information Schachar v. Am. Acad. activity character other concerning that is protected by activity GM's environmental legislative activities was allowed for Ophthalmology, Inc., 1988 WL 20183, at *4 (N.D. Ill. 1988) (evidence if Noerr-Pennington doing so is not overly may be admitted to show the purpose and prejudicial to the defendants). 9 13

10 In sum, even protected evidence may be admitted if it shows purpose and character other activity. Like MCI Communications and the other cases cited above, defendants evidence activity can and should be admitted here because it shows the purpose and character non-protected activity, i.e. that defendants knew about the dangers asbestos and actively sought to minimize their duties to protect individuals from it. Such notice and knowledge on issues." part goes to a "conscious indifference for workplace safety Mason v. Texaco, Inc. 741 F. Supp. 1472, (D. Kansas 1990). Moreover, such evidence would not unduly prejudice defendants since defendants themselves assert their use OSHA warnings as evidence compliance with necessary safety standards. If defendants are so eager to admit evidence their use OSHA warnings, they should have no problem with evidence relating to their purpose in doing so. Defendants have not submitted any evidence that admitting such evidence would be unduly prejudicial; the standard is not whether the evidence would prejudice defendants, but whether it would be unduly prejudicial. In light the notice and knowledge such evidence would show on the part defendants, and in the comparatively slight prejudice this would cast on them, the evidence would not be unduly prejudicial, and should be admitted, as courts have done in similar cases. See, e.g., Mason, 741 F. Supp at (rejecting defendant's attempt to preclude evidence defendant's opposition to the OSHA emergency standard for Benzene). B. The Probative Value Evidence Showing and Petition Government Agencies is not Prejudice to Defendant Defendant's Efforts to Lobby Substantially Outweighed by Alternatively, American Biltrite suggests that the probative value evidence confirming its activities would be substantially outweighed by the risk undue prejudice. While it suggests that such evidence is unrelated to Plaintiff's claims and would create collateral issues, Plaintiffs note that defendant's knowledge the dangers asbestos bears directly on its negligence in this case. In other words, evidence American Biltrite's knowledge and reaction to learning the hazards asbestos exposure, confirmed through its activities, is directly related, and in no way collateral, to Plaintiff's claims here. Defendant further argues that the Noerr-Pennington Doctrine has its roots in the First Amendment right to petition and freedom speech and that, as a result, their are protected. However, case law mandates that false statements, misrepresentations, fraud, etc. are not protected speech under the First Amendment, and it is Plaintiffs contention that American Biltrite (or the organization which it was a member) lied to the government regarding the safety efforts asbestos. Therefore, the Noerr-Pennington doctrine -does not protect American Biltrite's misrepresentations to the government, nor does the First Amendment right to freedom speech or right to petition protect them. In addition, the court held in Whelan v. Abell, 48 F.3d 1247 (D.C. Cir. 1995), that the Noerr- Pennington doctrine is not available to a non-antitrust claim when the plaintiff proved that misrepresentations were made to the government. As noted by the Whelan court, "[h]owever broad the First Amendment right to petition may be, it cannot be stretched to cover petitions falsehoods." based on known Id. at "Attempts to influence governmental action through overtly corrupt conduct, such as bribes... misrepresentation (in the adjudicatory

11 process), are not normal and legitimate exercises the right to petition, and activities this Noerr." sort have been held beyond the protection Noerr.FederalPrescription Presenption Service, Inc. v. American Pharmaceutical Ass'n, 663 F.2d 253, 263 (D.C. Cir. 1981). Therefore, the misrepresentation exception to the Noerr-Pennington doctrine appropriately applies to the facts this case, further supporting the admissibility the evidence challenged in defendant's motion. Because Plaintiff's evidence American Biltrite's efforts to lobby and petition the government are directly relevant and probative the claims that Plaintiffs will present to the jury, and not substantially outweighed by any purported prejudicial effect, defendant's motion must be denied. C. The California Appellate Court's analysis Noerr Pennington in the context an asbestos case in Hernandez v Amcord, 215 Cal App. 4th 659 (2013) is particularly enlightening on the exact issue before this Court At trial in Hernandeg Plaintiff sought to introduce evidence defendants California elected ficials with respect to the continued use asbestos in certain construction products. The trial court excluded such evidence, holding that "[n]o evidence..."." activity or any other advocacy before the state Legislature will be allowed... The court's thereon." ruling was based on "the Noerr-Pennington doctrine and the California cases On appeal, the California Appellate Court, after a thorough analysis Noerr Pennington and its progeny, reversed the trial court holding: The trial court's reliance on the Noerr-Pennington -doctrine to exclude evidence in this negligence/strict case is a misapplication the doctrine. As discussed above, the Noerr-Pennington doctrine shields defendants from for their actions in petitioning government ficials. It does not provide a basis for exclusion evidence activities that might be relevant to show a defendant's knowledge the dangerous nature its product or a failure to exercise ordinary care. The therefore reversed. evidentiary ruling is Conclusion Unwilling to confront documents and evidence at trial revealing that American Biltrite knew its asbestos containing floor tiles were ultra-hazardous; that its asbestos containing floor tiles could cause cancer; and that cancer warnings on boxes asbestos containing floor tiles were mandated by both state and federal law, American Biltrite now asks this Court to exclude evidence gained through association with and in the Asbestos Information Association and the Resilient Floor Covering Institute, relying on an interpretation the Noerr Pennington doctrine that would drastically expand its reach by transforming it from an affirmative defense into a blanket evidentiary privilege. American Biltrite requests this extraordinary relief without acknowledging that the U.S. Supreme Court expressly declined to create such an evidentiary privilege, and without citing to a single case in which the doctrine was applied to exclude otherwise admissible evidence in any case, let alone a negligence and strict case like this one

12 Instead, the authority cited by American Biltrite simply establishes that where the very act petitioning the government is the conduct that inflicts harm on the plaintiff and gives rise to his cause action, the Noerr Pennington doctrine will insulate the defendant from. This occurs most commonly in cases arising under antitrust laws or other laws anticompetitive â governing behavior--conspiracy, concert action, or tortious interference with contract or business relationship-cases in which one business interest (or group interests) successfully petitions the government to take regulatory action that causes actual harm to competitors. In this case, however, Plaintiff does not contend that when American Biltrite petitioned the government, it harmed him, giving rise to a cause action. Instead, he simply contends that when American Biltrite failed to warn about the known hazards its product, it was negligent and it sold a product that was defective; the statements made to the government do not give rise to this cause action, but simply reveal facts about American Biltrite's knowledge asbestos hazards and its response to that knowledge. Noerr Pennington simply has no application in a personal injury case like this one, and American Biltrite has cited no authority to the contrary. This Court should recognize American Biltrite's motion for what it is-part â an overall effort on the part defendants to transform Noerr Pennington from a shield to an evidentiary one, an effort that American Biltrite has attempted before, without success. This court should deny American Biltrite's groundless request. In sum, evidence relating to activities protected by the Noerr-Pennington doctrine is admissible unless there is some other reason, such as relevance or unfair prejudice, for excluding it. The Noerr-Pennington doctrine does not apply to defendants efforts, and even if such evidence is protected, it may and should still be admitted because it shows purpose and character on part relating to the dangers asbestos. Accordingly, for the reasons discussed above, American Biltrite, Inc.'s motion to exclude relevant evidence under Noerr- Pennington should be denied. Reference to "Generalized Hazards" Equipment. Defendant appears to be seeking Asbestos and Other Products and/or to preclude the Plaintiffs from mentioning, referencing, or introducing any evidence any products which may have been manufactured hazards" by defendants, but are not at issue in this case and any testimony regarding "general asbestos. Plaintiffs object to this matter on the ground that it is overbroad as set forth by defendants. Moreover, such evidence is relevant and admissible on the issue defendants knowledge the state--the-art concerning the hazards asbestos and knowledge the hazards asbestos in general. See George v. Celotex Corp.,,914 F.2d 26, 29 (2d Cir. 1990). It is also relevant to the defendants ability to conduct testing and research as well as their efforts to identify or control hazards related to asbestos. Other products and equipment manufactured by the defendants herein is relevant to demonstrate a particular defendant's knowledge the hazards asbestos, a key component in an asbestos case. It demonstrate when the defendant began to remove asbestos from its products, or for how long it continued to incorporate it. It may demonstrate the defendants ability to manufacture similar products without asbestos, while continuing plaintiff used. Evidence and testimony regarding confuse the jury, prolong may to incorporate it into the product that defendants other equipment will not the trial, or prejudice the defendants. If anything, it will light on the important issues at trial. It is well settled that it is the use asbestos, and the help shed

13 defendants knowledge regarding product as defendant argues. the hazard, that is relevant and is not restricted to a particular 4. WHEREFORE, Plaintiffs respectfully requests that this Court deny certain in limine motions discussed supra, filed by defendant. Dated: New York, New York February 19, 2018 Respectfully submitted, WEITZ & LUXENBERG, P.C. Attorneys for Plaintiffs 700 Broadway New York, New York (212) M~M S~ o-o Thomas M. Comerford