MAIMONE&ASSOCIATES PLLC. May 7, 2018 I& ATTORNEYSAT LAW

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1 MAIMONE&ASSOCIATES I& ATTORNEYSAT LAW PLLC 150HAVEN AVENUE PORTWASHINGTON,NY TELEPHONE(516) FACSIMILE (516) Honorable Gerald Lebovits May 7, 2018 New York County Supreme Court Part 12, Room Centre Street New York, New York Re: New York County Asbestos Litigation Case Name Index No. Cotter v. Air and Liquid Systems, et al /2015 McFarland v. Advance Auto Supply, et al /2015 Hon. Judge Lebovits: We represent Mack Trucks, Inc. ("Mack"), a defendant in the McFarl and case scheduled for jury selection on May 29, In anticipation of trial, defendants in the above-listed matters respectfully request that the Court consider the following joint motions in-limine.1 IN LIMINE MOTIONS 1. Preclusion of Cumulative Exposure Theory. Defendants anticipate that plaintiffs' expert witnesses will attempt to prove liability under a theory of cumulative exposure, or other unquantified opinions. Such opinions are inadmissible as a matter of law as they do not meet the 1 Certain issues may apply in only certain cases and for certain Defendants. However, at the Court's directive, this Brief is seeking to cover all issues requested by the remaining Defendants. j

2 requirements set by the Court of Appeals in Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) and as further explained in Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014) and Juni v. A.O. Smith Water Products Co., et al., 148 A.D.3d 233 (1st Dept. 2017). According to the Juni Court, New York law requires "at least some quantification or means of assessing the amount, duration and frequency of exposure to determine whether exposure was sufficient to be found a contributing cause of the disease." Juni, held that plaintiff could not simply rely on a claim that all exposure to asbestos, cumulatively, resulted in the diagnosis. 2. To require Parker/Frye hearings prior to admission of expert testimony In Parker v. Mobil Oil Corp., the Court of Appeals recognized that while there was no particular novel methodology at issue requiring a Frye hearing on the determination of its reliability, the inquiry was "more akin to whether there is an appropriate foundation for the experts' opinions" in the first place. 7 N.Y.3d 434, 447 (2006). Defendants request that this Court require a Frye/Parker hearing to assess the foundation of Plaintiffs' experts' opinions and determine whether accepted methods were appropriately employed before allowing them to testify before the jury. 3. Choice of law principles demonstrate that American Maritime Law should be applied by this Court.

3 Defendants ask this Court to apply American Maritime Law as it is most applicable to the facts of Decedent's exposure to asbestos while working aboard various vessels around the world. John Shortt, Decedent, testified that the majority of his exposure to asbestos from 1951 until he left the Merchant Marines in During this time, Decedent sailed aboard numerous vessels and was allegedly exposed to asbestos while on the high seas. Plaintiff's decedent, Robert Reinke, who was diagnosed with mesothelioma, alleges that his diagnosis was caused by his work with or around asbestos-containing products during his tenure in the United States Navy aboard the U.S.S. Los Alamos, as well as from his post-navy work as a mechanic performing automotive repairs. Federal maritime law applies when a tort claim satisfies "conditions both of location and of connection with maritime activity." Grubart v. Great Lakes Dredge 6 Docl Co., 513 U.S. 527, 534 (1995). First, the "location" condition requires a court to determine "whether the tort occurred on navigable water or whether injury suffered on land was cause by a vessel on navigable water." Id. Second, the "connection" condition requires two determinations: (1) that "the incident has a 'potential disruptive impact on maritime commerce,'" and (2) that "'the general character' of the 'activity giving rise to

4 the incident' shows a 'substantial relationship to traditional maritime activity.'" Id. (quoting Sisson v. Ruby, 497 U.S. 358, 364 & n.2, 365 (1993). Based upon the facts of this matter, both the location and connection prongs of the test are satisfied and the Court should apply American Maritime Law in the Shortt case. 4. To preclude Plaintiff's from mentioning, criticizing, or objecting to any testimony of Defendants' corporate witnesses based on a purported "lack of personal knowledge". Plaintiffs should be precluded from mentioning, referencing, or introducing evidence regarding any purported "lack" of personal knowledge of defendants' corporate witnesses. New York law recognizes that unlike "natural persons," corporations cannot give testimony and therefore must act through the designation of authorized representatives. Toren v. Anderson, Kill & Glick, 185 Misc. 2d 23, 26 (Sup. Ct., New York Cty. 2000).. Pâ (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); Casolaro v. World Dep' Championship Wrestling, 4 7 A.D.3d 803 (2d Dep't 2008).. 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, 4

5 349 (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). For these reasons, any statement or objection Plaintiffs' Plaintiffs may assert regarding defendants' corporate witnesses' lack of personal knowledge is specious and should be rejected by this Court. 5. Certain equipment Defendants are not liable for asbestos materials added on by third parties. Under the holding in In re New York City Asbestos Litig. (Dummit), 27 N.Y.3d 765, 759 (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." Dummit, did not nullify the holding in Rastelli v. Goodyear Tire 6 Rubber Co., 79 N.Y.2d 289, 591 (1992), that 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 or receive economic benefits. Where there is no evidence that a manufacturer had an active role, interest, or influence in the types of products to be used in connection with its own product after it is placed into the stream of commerce, that manufacturer has no duty to warn. 6. Sumner Simpson Papers and Documents from Other Companies against Certain Friction Defendants.

6 Introducing any evidence, or referring to documents or exhibits regarding the "Sumner Simpson Papers," "Ames" documents, or "Saranac" documents. Corporate documents of entities other than defendants, such as Raybestos and Owens- Corning Fiberglass, cannot be used against defendants since such use amounts to an improper attempt to impute the knowledge of asbestos miners and manufacturers of asbestos-containing products to defendants. To the extent that Defendants' products may have contained some encapsulated chrysotile asbestos in brake linings, other independent entities outside of Defendants' control manufactured the brake linings. Defendants received brake linings or complete wheel or axle assemblies from independent vendors where the encapsulated asbestos content was already assembled into the components upon receipt by Defendants. Evidence that might apply to entities that mined or manipulated raw fibers into their own products is irrelevant and irreparably prejudicial if attempted to be used against Defendants. In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831 (1992).. 7. Evidence or References to an alleged Ban on Asbestos. Mentioning, referencing or introducing any evidence of The Environmental Protection Agency ("EPA") hearings on asbestos, the testimony presented at the EPA Hearing and the

7 EPA's alleged "ban" of products containing asbestos. Such references are inaccurate and irreparably prejudicial. The EPA has not banned asbestos. Asbestos is still in use in various forms and the EPA's attempt to ban asbestos was specifically overruled in Corrosion Proof Fittings v. Environmental Protection Agency, 947 F.2d 1201 (5th Cir 1991).. 8. Precluding trial reference to Decedent as a "victim" an "asbestos victim", and use of the term "asbestos industry." or 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).. The prohibition applies to language used by Plaintiffs, their counsel, or by their 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 counsel" remarks when uttered by counsel"). 9. Conspiracy to Suppress Information. Testimony from any witness to the effect that "all Defendants conspired to suppress information pertaining to the hazards of asbestos_". Such testimony lacks foundation, is conclusory and speculative and invades the jury's province.

8 10. Corporate America. Plaintiffs should be precluded from mentioning or offering into evidence any comments or insinuations that corporate America is evil as represented by the criminal activities of companies such as Enron and World Com. Any reference would be highly prejudicial, totally irrelevant to this case, and would be used only to prejudice the defendants. 11. Excluding the trial testimony of Plaintiff's state-ofthe-art experts. Plaintiffs must be precluded from introducing the testimony of Dr. Barry Castleman, Dr. Gerald Markowitz, Dr. David Rosner, and Dr. Richard Lemen,or any purported "State of the Art" witness, in an attempt to show that particular defendants had specific knowledge of health hazards connected with plaintiff's employment. As to publications from the scientific or medical community, testimony should be limited to the existence of articles or materials in a historical context, and not interpreted or construed as evidence of the specific knowledge of an individual defendant. In re Related Asbestos Case, 543 F.Supp 1142, 1149 (N.D. Cal. 1982). See, also, Celotex Corp. v. Tate, 797 S.W.2d 197, 202 (Tex Ct. App. â 1990); Threadgill v. Manville, WL (D. Del July 27, 1990) rev'd on other grounds 928 F.2d 1366 (3d Cir.

9 1991); Burgess v. Abex Corp., 725 N.E.2d 792, 796 (Ill. App. Ct. 2000). Indeed, Dr. Castleman's testimony has been repeatedly excluded or limited in Texas, California, Oklahoma, Alabama and Washington, upon the courts' realization of his 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 portions of the articles would best summarize the authors' conclusions." See, e.g., In Re Related Asbestos Cases, 543 F.Supp (N.D. Cal. 1982). Likewise, we similarly expect Dr. Markowitz, Dr. Rosner, and Dr. Lemen to merely base their opinions on the review of records and reports prepared by others. 12. Precluding reference payment of a potential judgment. Evidence, discussion of, or reference to Defendants' ability to pay a judgment is inadmissible because it is unduly prejudicial and highly inflammatory. Adams v. Acker, 394 N.Y.S.2d 8, 10 (1st Dept. 1977); Nicholas v. Island Industrial Park, Inc., 361 N.Y.S.2d 39, 41 (2nd Dept. 1974).. Statements regarding any settlement demands, offers or negotiations between the parties are inadmissible as to admissions of liability or the "value of an admitted

10 â liability." Quillen v. Bd. of Educ., 115 N.Y.S.2d 122, 126 (Sup. Ct. N.Y. Cnty. 1952).. Further, references to the refusal of either party to enter into a stipulation prior to trial are inadmissible. See People v. Hills, 532 N.Y.S.2d 269, (2d Dep't 1988). Placing evidence of a defendant's finances before the jury violates their constitutional due process rights. 13. Motion to preclude "Regardless of Who Pays" or other reference to insurance. The Court should preclude Plaintiffs from questioning the jury panel as to whether they would answer an issue of damages in accordance with the evidence, regardless of who pays the damages or when they will be paid, or whether they will ever be paid, or any similar version of such inquiry for the reason that the same improperly injects the implication of insurance into the suit, or making any such reference in jury argument of similar vein. See Young v. Knickerbocker Arena, 281 A.D.2d 761, 722 N.Y.S.2d 596 (3rd Dept. 2001); Constable v. Matie, 199 A.D.2d 1004, 608 N.Y.S.2d 10 (4th Dept. 1993); Tropp v. Jacobs, 273 A.D. 274 (1st Dept. 1948). 14. To preclude Plaintiffs' counsel from mentioning any dollar award to the jury during voir dire and opening statements.. Plaintiffs' counsel should be precluded from mentioning any dollar award to the jury during voir dire and opening statements. Such statements by counsel are improper and j

11 â prejudicial at such an early stage, and should be precluded. Siegel, New York Practice, 5th Ed. 217 (2004 amendment to CPLR 4016(b) bars mention of specific sum during opening statements). The same holds true for forecasting dollar ranges for damages during voir dire. The Uniform Civil Rules for the Supreme Court and the County Court specifically states that "[d]uring the voir dire each attorney may state generally the contentions of his or her client, and identify the parties, attorneys and the witnesses likely to be called. However, counsel may not read from any of the pleadings in the action or inform potential jurors of the amount of money at issue." N.Y. Comp. Codes R. & Regs. tit. 22, , Appendix E (4) (emphasis added). 15. Motion to preclude lay witness testimony regarding product composition. "The general rule... is that witnesses must be confined to the communication of facts, and not opinions or conclusions which they may have formed from the facts, whether known to themselves, or derived from the testimony of others." Morehouse v. Matthews, 2 N.Y. 514, (N.Y. 1849). "The lay opinion rule requires the ordinary lay witness to confine his testimony to the facts, and to exclude his conclusions or opinions." People v. Sanchez, 492 N.Y.S.2d 683, 684 (N.Y. Sup. Ct. 1985). "The rule is founded on the premise that, since it is the sole province of the jury to draw inferences from 11

12 facts, admission of opinion testimony would usurp the jury's fact finding function." Id. The exception to the rule only exists "whenever the facts are such that they cannot be described so as to enable persons to form proper conclusions regarding them." Id. 16. Improper or Prejudicial Comparisons. Plaintiffs should be precluded from making prejudicial comparisons between the conduct of Defendants and other corporate entities or notorious products such as cigarettes, Ford Pintos, Firestone tires or any other comparison designed to inflame or appeal to the passions of the jury for the reason that such references are improper and may not be cured by an instruction. Principe v. Assay Partners, 154 Misc.2d 702, 586 N.Y.S.2d 182 (Sup. Ct. N.Y. Co. 1992); People v. Moss, 215 Dep' A.D.2d 594, 626 N.Y.S.2d 835, (2nd Dep't. 1995); People v. Shelton, 307 A.D.2d 370, 763 N.Y.S.2d 79, (2nd Dep't. 2003) Requiring the disclosure of all settlements. Defendants move for an order that Plaintiff's counsel be required to disclose to all parties, prior to the beginning of trial, the identities of all defendants who have reached settlements with Plaintiff. We further move for an order that all settlements reached after the initial disclosure described above are disclosed within twenty-four hours after settlement occurs. Such information would facilitate further settlement in j

13 that it would place all parties on an equal footing in evaluating the risks of trial. 18. Prohibiting the use of the terms "Asbestos Industry" or "Member of the Asbestos Industry" in the presence of the jury. Defendants move the Court in limine for an order prohibiting any party or attorney from making any direct or indirect reference, through witnesses or exhibits, to terms such as "asbestos industry" or "member of the asbestos industry" and from referring to Defendants as an "asbestos company" or "member of the asbestos industry" in the presence of the jury. During the course of litigation involving asbestos products Plaintiffs have repeatedly used the terms "asbestos industry" and "member of the asbestos industry." The terms "asbestos industry" and "member of the asbestos industry" are particularly misleading and the use of said terms is unfairly prejudicial because it erroneously suggests to the jury the existence of a group and the implication of coordinated group behavior. 19. To preclude any of the Plaintiff's witnesses from relying on case reports as a basis for testimony on the issue of causation or notice. It is well settled that opinion evidence must be based on facts in the record or personally known to the witness. Two limited exceptions to this rule are that an expert may rely on out-of-court material if it is the kind accepted in the profession as reliable in forming a professional opinion, or if j

14 â it comes from a witness subject to full cross-examination on the trial.. Hambusch v. New York City Transit Authority, 63 N.Y.2d Dep' 723 (1984); Borden v. Brady, 92 A.D.2d 983 (3rd Dep't. 1983); see also Gant v. Novello, 302 A.D.2d 690, 695 (3d Dep't 2003) (statements in medical books, even if considered authoritative, are not admissible in evidence as proof of the facts or opinions contained therein). Case reports or groups of case reports are insufficient proof of causation. Case reports are not proper epidemiological studies. They lack scientific basis and are not reliable proof. The necessary predicate, a proven causal connection between asbestos and the Decedent's disease, is absent in a case report. Consequently, we submit that Plaintiff's experts should not be permitted to testify that case reports or studies appearing in medical literature prove causation or constitute constructive notice of a causal connection between asbestos and Plaintiffs' disease. 20. Precluding Use of Articles Upon Which Plaintiffs Stateof-the-Art Witnesses Rely That Constitute Inadmissible Hearsay. In order for articles to be admissible, plaintiff must establish that the documents are not hearsay or that they fall within an exception to the hearsay rule. See Hornbook v. Greek Peak/Peak Resorts, Inc., Index No , 2002 WL (Sup. Ct. Tompkins Co. May 29, 2002). Here, the documents and 14

15 information that plaintiffs' plaintiffs state-of-the-art witnesses will rely on are inadmissible hearsay and in some instances, hearsay within hearsay. Plaintiff cannot establish that the documents fall within an exception. 21. Precluding Plaintiff's experts from testifying about conclusions allegedly drawn by governmental Regulatory Agencies and non-governmental organizations. Government statements regarding health hazards are irrelevant to the elements of Plaintiffs' claim that must be proven at trial. Such statements include EPA videos such as "Don't Blow It" or publications such as the Gold Book and similar pamphlets. Indeed, 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 side of caution" because their analyses "involve a much lower standard than that which is demanded by a court of law." McLain v. Metabolife Int'l Inc., 401 F.3d 1233, 1250 (11th Cir. 2005) (quoting Rider v. Sandoz Pharm. Corp., 295 F.3d 1194, 201 (11th 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 6 Co., 216 A.D.2d 79, 80 (1st Dep' Dep't 1995); Cawein v. Flintkote Co., 203 A.D.2d 105, 106 (1st Dep't 1994). As government statements and regulations use a j

16 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. 22. Referencing Trade Association in an effort to impute Association's knowledge to Defendants. Plaintiffs should be precluded from referencing or presenting testimony with respect to the minutes of general meetings and committee meetings and any other records of the Industrial Hygiene Foundation, Asbestos Textile Institute or any other trade organization or association and the minutes thereof. Such documents and testimony are irrelevant in the absence of proof that defendants were present at these meetings or that they received the materials. To the extent that such materials include the writings and prior statements of witnesses who are not available for cross-examination, they constitute inadmissible hearsay and are unduly prejudicial. See Rotolo v. Digital Equipment, 150 F.3d 223 (2d Cir. 1998) Excluding non-party witnesses from the courtroom. There is a risk that, without this order, some witnesses' testimony may influence the testimony of others, threatening the integrity and independence of the witnesses' testimony. See Capitol Cab Corp. v. Anderson, 85 N.Y.S.2d 767, 769 (Sup. Ct., N.Y. Cnty. 1949) (holding that the purpose of j

17 sequestering witnesses is to prevent "one prospective witness from being taught by hearing another's testimony.") 24. Preclusion of a charge of recklessness. We anticipate that Plaintiff will attempt to introduce evidence indicating that some defendants knew that asbestos could cause diseases before it became public knowledge. However, there is 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).. It is anticipated that the evidence will be insufficient to support a finding of reckless disregard for the Decedents' safety. 25. To preclude Plaintiff from submitting any and all evidence related to punitive damages. Defendants incorporate and join in the motion filed by defendant Clyde & Co. US LLP in the McFarland, matter and to preclude punitive damages and request the same relief. 26. To preclude disparaging or prejudicial references. j

18 The Court must bar parties from referencing or making disparaging remarks including use of the terms "murderer," "criminals," "liars," "frauds," "cheats," or any inference Defendants manufactured or generated evidence, for the reason that said terms and allegations have been held to be improper and prejudicial appeals to the passions and sympathies of the Dep' jury. Caraballo v. City of New York, 86 A.D.2d 580 (1st Dep't 1982) Evidence after Asbestos. Plaintiffs' Alleged Last Exposure to 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 Cnty. 1991) (precluding the use of government regulations promulgated after the last date of plaintiff's alleged exposure to asbestos.) 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. Cnty Mar. 23, 2015) (noting that plaintiffs must prove that a contractor "knew or should have known" 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 Cnty 2007) (recognizing j

19 â tha.t state of the art materials must pre-date the design and manufacturing stages, otherwise they cannot be considered in a design defect claim), Rai nbow v. Alber t Eli a Bui ldi ng 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-a.ccident tests and findings are only admissible if they relate back to the technology of the industry at the time of manufacture); Bolm v. Tri umph 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 sta.te of the art at the time of manufa.cture). Any evidence, wha.tsoever, as to what Defendants knew or should have known about the hazards of asbestos subsequent to the last date of testified xposure rom ny roduct anufactured y defendants must be precluded. 28. Precluding the admission of testimony and documents of defendants' all products and/or equipment, that, are not, at, issue in this matter. It is axiomatic that only relevant evidence is admissible. Evidence is relevant if it has "any tendency in reason to prove the existence of any material fact." People v. Vi lder, 93 N. Y. 2d 352, 356, (1999); see also Ameri can Motori sts Zns. Co. v. Schindler Elevator Corp., 291 A. D. 2d 467, (2nd Dep't 2002). "Evidence is properly excluded when it ha.s j

20 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, (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 (1988); see also People v. Davis, 43 N.Y.2d 17, 27 (1977) We anticipate that Plaintiff will attempt to admit proposed exhibits that purport to be advertisements, catalogs, manuals, memoranda, and bulletins relating to products and/or equipment sold not at issue in this matter. Plaintiff has no foundation for many of these documents, save the fact that they bear the trade names of the Defendant. The mere fact that these exhibits reference products and/or equipment sold Defendants are 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. 29. To preclude evidence of similar pending or prior actions against Defendants. Defendants seek to preclude any evidence of testimony about any pending or prior lawsuits involving Defendants. Such

21 information is irrelevant to the current matter and should be excluded. The undue prejudice caused would substantially outweigh any probative value of such evidence and therefore should be excluded. 30. To preclude expert testimony regarding the asbestos content or composition of products and materials without proper background, expertise, and foundation. "Before the testimony of an expert witness can be received in evidence, the party seeking to offer that evidence has the burden of demonstrating the qualifications that make the witness an expert." Matter of R.M. Children, 165 Misc. 2d 441, 444, 627 N.Y.S.2d 869, 872 (Fam. Ct. 1995) (citing Meiselman v. Crown Heights Hospital, Inc., 285 N.Y. 389 (1941).. A witness may be qualified as an expert based on study, experience or observation. Meiselman, 285 N.Y. at 398. "No precise rule has been formulated and applied as to the manner in which such skill and experience must be acquired." Id. Instead, long observation and actual experience, even without study of the subject qualify a witness as an expert in that subject. Id. Likewise, proper foundation must be laid in order for such evidence to be admissible. See Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006).. Plaintiff intends to rely upon experts who are not qualified as industrial hygienists, and who have no expertise in the use and function of the materials at issue here. Despite j

22 this, it is anticipated that such experts will attempt to testify as to the necessity of using asbestos-containing equipment in conjunction with a particular function, without having the applicable expertise from knowledge, education or observation to do so. Witnesses without industrial hygiene Experts" expertise (hereinafter "Non-IH Experts") have neither the information nor the expertise necessary to draw such a conclusion. Plaintiff should be precluded from introducing testimony from any Non-IH Experts. 31. Preclusion of statements by non-medical witnesses concerning Decedent's physical condition, diagnosis or disabilities. We anticipate that Plaintiff will attempt to present opinion testimony from lay witnesses and other non-medical witnesses concerning what they surmise or what Decedent may have been told by a doctor, osteopath, chiropractor, or other medical witness concerning Decedent's physical conditions, disabilities or diagnoses. We further anticipate that Plaintiff's expert witnesses and treating physicians will testify as to Decedent's medical diagnosis. However, any statements made by non-medical witnesses pertaining to what they may have been told by a medical witness constitute inadmissible hearsay. See Nucci ex rel. Nucci v. Proper, 95 N.Y.2d 597, 602 (2001) (out-of-court statements offered to prove the truth of the matter asserted are hearsay);

23 â see also Griggs v. Children's Hosp. of Buffalo, Inc., 193 A.D.2d Dep' 1060, 1061 (4th Dep't 1993) To limit the testimony of Decedent's treating physicians to facts relating to actual treatment. We anticipate that Plaintiff will seek to offer expert opinions from Decedent's treating physicians that Decedent's asbestos exposure to Defendants' products sold caused his mesothelioma. While New York law allows treating physicians to give expert testimony without prior disclosure, see, e.g., Breen v. Laric Entertainment Corp.,,.2 2 A.D.3d 298, (1st Dept. 2003), the physician still must be qualified to render the opinion in the first place. Here, there is no evidence that the treating physicians in this case are qualified to give causation opinions that Decedent's exposure to asbestos from defendants' particular products caused his mesothelioma. Where a treating physician is not qualified to give expert testimony, courts have found such testimony inadmissible. People v. Kincey, 168 A.D.2d 231, (1st Dep't 1990). That is so in the case at bar. 33. To preclude Plaintiffs from implying or otherwise introduce speculative evidence that Decedent would have read and heeded a warning had one been given. Plaintiff has the burden of proof in a failure to warn case that the product user would have followed the warning if given. Sonsa v. Am. Home Prods., 298 A.D.2d 158 (1st Dep't 2002);

24 see also, In Re New York City Asbestos Litig., 990 N.Y.S.2d 174, 195 (lst Dep't 2014) (Friedman, J., dissenting). To the extent there is no proof that Decedent would have heeded any warnings, any such speculative testimony or evidence to try to prove such a claim must be excluded. 34. To exclude evidence of or reference to liability insurance at trial. 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 Dep' N.Y.S.2d 596, 599 (3d Dep't 2001); Constable v. Matie, 608 N.Y.S.2d 10, 11 (4th Dep't 1993).. An y re ference that injects the issue of liability insurance coverage into the case is wholly immaterial. Id. 35. To require the disclosure of witnesses to testify at trial ten days before trial is scheduled to commence. Plaintiff's corporate liability witness disclosure identifies numerous witnesses that would provide irrelevant, duplicative and/or cumulative testimony if all called to testify, or if transcripts of prior testimony by these witnesses are admitted during trial. With no way of knowing which of these witnesses Plaintiff actually intends to offer, Defendants have improper notice of the case against it and is prevented 4

25 from adequately and efficiently preparing trial defenses. To require Defendants to prepare for trial anticipating testimony, by deposition or live, from a laundry list of potential witnesses would require overly burdensome preparations that would prove to be largely futile. Defendants should not be unduly prejudiced and forced to expend unnecessary time and resources to prepare for witnesses that may not be offered during Plaintiff's case in chief, simply as a result of Plaintiff's failure to adequately and accurately identify the witnesses that they will offer during trial. 36. Videotapes Prepared by Richard Hatfield, William Longo and/or Materials Analytical Services, Inc. ("MAS"). MAS videotapes, including those showing mechanics working in protective suits with full face respirators using klieg or other extreme lighting against a black background create the impression that a pervasive hazard exists despite the inability of MAS to establish or quantify the existence of such a hazard. The tapes fail to conform to the standards for admissible expert testimony and whatever probative value they may have is greatly outweighed by the prejudice that their exhibition to the jury may cause. Kingsley v. Mandell Food Stores, 57 A.D.2d 944, 393 N.Y.S.2d 86 (2nd Dep't. 1977).. Plaintiffs' 37. To preclude counsel from suggesting that jurors place themselves in the position of the Decedent.

26 The "Golden Rule" argument asks jurors to place themselves in the shoes of the Plaintiff and do unto him as they would have him do unto them under similar circumstances. This argument is prohibited in New York. Boshnakov v. Bd. of Educ. of Town of Eden, 227 A.D.2d 996 (4th Dep't 2000). Suggesting or asking the 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 Serv., 175 Misc. 829 (Sup. Ct. N.Y. Co. 1940); Marcoux v. Farm Serv. and Supplies Inc., 290 F. Supp.2d 457 (S.D.N.Y. 2003) To preclude photographs and videotape of Plaintiffs Defendants move affirmatively to preclude the introduction of photographs or videotapes of plaintiffs, prior to and during their illness, which are irrelevant and highly prejudicial and meant to impermissibly arouse sympathy for the plaintiffs and thereby mislead and confuse the jury as to the proper basis for determining liability. "Day in the life" videos are staged to inflame the passions of the jury; accordingly, the video is plainly more prejudicial than probative of any material fact to be decided by the jury. People v. Stevens, 76 N.Y.2d 833, 835 (holding that inflammatory and prejudicial photographs should have been excluded from evidence at trial). Further, any such videotape would

27 constitute hearsay for which there is no exception. People v. Acomb, 87 A.D.2d 1, 6 (4th Dep't 1982). 39. Defendants Seek to Admit Forms.. Plaintiffs' Proof of Claim Proof of claims should be "admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity." Phillip A. Bellino v. Bellino Construction Co., Inc., 75A.D.2d 630, 427 N.Y.S.2d 303 Dep' (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; DiCamillo v. City of New York, 245 A.D.2d 332, 665 N.Y.S.2d 97 (2d Dep't 1997); Richardson, Evidence 253, at 220 [Prince 10th ed], (verification is expressly authorized by statute), see CPLR 3020[d][3], Matter of Giambra v. Commissioner of Motor Vehicles of State of N.Y., 46 N.Y.2d 743, 413 N.Y.S.2d 643, 386 N.E.2d251 (1978).. Plaintiffs' 40. To Preclude Counsel From Arguing To The Jury "Excessive" That Plaintiff Is Entitled To An Pain And Suffering Damages Award. The Court should preclude Plaintiffs' counsel from arguing to the jury that Plaintiffs are entitled to an "excessive" pain and suffering damages award, when that amount would "deviate[s] materially from what would be reasonable compensation" under these

28 circumstances. N.Y.C.P.L.R. 5501(c).. 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 "unring" the bell. See Rhodes v. Blair, 919 S.W.2d 561, 563 (Mo. Ct. App. 1996); see also In Related Asbestos Cases, 543 F, Supp. 1152, 1159 (N.D. Cal. 1982). 41. To Admit Deposition Transcripts and Interrogatories of All Article 16 Fault Sharers. Defendants contend 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"). NYCAL CMO permits use of previously served discovery. see, CMO Section XII. Nonparty depositions may be used where allowed by the CPLR. Moreover, CPLR 3117 (a) (2) states: "[T]he 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."

29 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 Plaintiff'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. The remaining Defendants 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 Plaintiff. Defendants also contend that in an instance in which Plaintiffs have identified a discovery response, transcript, or other document of a fault sharer in their pretrial disclosures, then there can be no later complaint that the discovery is unreliable. In Bigelow v. AC and S, Inc., 196 A.D.2d 436 (1st Dep't. 1993), 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. The Court found that, "Deposition testimony, other than

30 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 the first instance elect to read into any evidence any of the testimony from those depositions." Id. at 439 (emphasis added). 42. Peremptory Challenges. Defendants move affirmatively pursuant to CPLR 4109 to permit defendants in the instant action who do not share an identity of interest and are not united in interest to each have additional peremptory challenges for jurors and alternate jurors selected. Very truly yours, MAIMONE 6 ASSOCIATES PLLC BY: S/Lance Perez LANCE PEREZ TO: BELLUCK 6 FOX Attorneys for Plaintiffs 546 Fifth 4th Avenue, F1OOr New York, New York (212) All Remaining Defense Counsel Served via the Electronic Filing System of the Courts of the State of New York on all registered parties on May 7, 2018.