FILED: NASSAU COUNTY CLERK 02/19/ :27 PM INDEX NO /2016 NYSCEF DOC. NO. 161 RECEIVED NYSCEF: 02/19/2018

Transcription

1 338 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY â CIVIL BRANCH â PART: 13 X ROGER CARILLI, Plaintiff, INDEX -against /15 NO. AO SMITH WATER PRODUCTS, CO., BURNHAM, LLC, Individually and as successor to BURNHAM CORPORATION, CROWN BOILER CO., f/k/a CROWN INDUSTRIES, INC., THE FAIRBANKS COMPANY, and JENKINS BROS., Defendants. X 71 Thomas Street New York, New York September 29, 2017 B E F 0 R E: HONORABLE MANUEL J. MENDEZ, Justice, and a jury APPEARANCES: WEITZ & LUXENBERG Attorneys for Plaintiff 700 Broadway New York, New York BY: DANNY R. KRAFT, JR., ESQ. BENJAMIN DARCHE, ESQ. McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Co Northwest 17th â Way Suite 202 Fort Lauderdale, Florida BY: JANNA M. NUZUM, ESQ. McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Company 300 International Drive â Suite 100 Buffalo, New York BY: SUSAN CHARTERS, ESQ.

2 339 2 APPEARANCES CONTINUED: 3 CLYDE & CO., US, LLP Attorneys for Jenkins Brothers Lexington Avenue New York, New York BY: JEFFREY FEGAN, ESQ. 6 ECKERT, SEAMANS, CHERIN & MELLOTT, LLC Attorneys for AO Smith 7 Four Gateway Center Mulberry Street 8 Newark, NJ Suite 401 BY: MICHELLE GRADY, ESQ. 9 DAVID KATZENSTEIN, ESQ. 10 MALABY BRADLEY Attorneys for Crown Boiler Co Broadway - Suite 600 New York, New York BY: STEPHEN NOVAKIDIS, ESQ. 13 DEHAY ELLISTON, ~ LLP Attorneys for Burnham South Charles Street - Suite 1400 Baltimore, Maryland BY: VINCENT J. PALMIOTTO, ESQ. 16 McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP Attorneys for Burnham, LLC Mount Kemble Avenue Morristown, New Jersey BY: NANCY MCDONALD, ESQ. 19 ANGELA TOLAS, and DENISE PATERNOSTER 20 OFFICIAL COURT REPORTERS

3 340 2 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - CIVIL BRANCH - PART: X 4 ERNEST GILBERT, Plaintiff, 5 INDEX NO. -against / THE FAIRBANKS COMPANY, 8 Defendant X 9 71 Thomas Street B E F 0 R E: New York, New York September 29, 2017 HONORABLE MANUEL J. MENDEZ, Justice, and a Jury A P P E A R A N C E S: WEITZ & LUXENBERG 15 Attorneys for Plaintiff 700 Broadway 16 New York, New York BY: DANNY R, KRAFT, JR., ESQ. 17 BENJAMIN DARCHE, ESQ. 18 McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Co Northwest 17th Way - Suite 202 Fort Lauderdale, Florida BY : JANNA M, NUZUM, ESQ. 21 McGIVNEY, KLUGER 6 COOK, PC Attorneys for The Fairbanks Company International Drive - Suite 100 Buffalo, New York BY: SUSAN CHARTERS, ESQ. 24 ANGELA TOLAS, and 25 DENISE PATERNOSTER, OFFICIAL COURT REPORTERS 26

4 341 2 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - CIVIL BRANCH - PART: X 4 THOMAS GALLEN and MAURA GAL L EN, Plaintiffs, 5 INDEX NO. -against /15 6 AMTICO, COLUMBIA BOILER COMPANY OF POTTSTOWN, THE 7 FAIRBANKS COMPANY, and KOHLER COMPANY, 8 Defendants X 71 Thomas Street 10 New York, New York September 29, B E F 0 R E: 13 HONORABLE MANUEL J. MENDEZ, Justice, and a jury 14 A P P E A R A N C E S: 15 WEITZ & LUXENBERG 16 Attorneys for Plaintiffs 700 Broadway 17 New York, New York BY: DANNY R. KRAFT, JR., ESQ. 18 BENJAMIN DARCHE, ESQ. O' 19 MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, PC Attorneys for Columbia Boiler Company 20 One Penn Center 1617 John F. Kennedy Boulevard - Suite Philadelphia, Pennsylvania BY: THOMAS J. JOHANSON, ESQ. 22 CAROL TEMPESTA, ESQ. NATHAN CHIARAVALLOTI, ESQ. 23 McGIVNEY, KLUGER 6 COOK, PC 24 Attorneys for The Fairbanks Co Northwest 17th Way - Suite Fort Lauderdale, Florida BY: JANNA M. NUZUM, ESQ.

5 APPEARANCES CONTINUED: 3 McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Company International Drive - Suite 100 Buffalo, New York BY: SUSAN CHARTERS, ESQ. 6 HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP Attorneys for Kohler Company 7 40 Paterson Street PO Box New Brunswick, New Jersey BY: ALAN I. DUNST, ESQ. 9 MONICA R. KOSTRZEWA, ESQ. 10 HAWKINS, PARNELL, TRACKSTON & YOUNG, LLP Attorneys for American Biltrite, Inc Cole Avenue - Suite 500 Dallas, Texas BY: JASON J. IRVIN, ESQ. 13 KUROWSKI & SHULTZ Attorneys for American Biltrite, Inc Green Mount Road - Suite 400 O'Fallon, Illinois BY: ROBERT C. CREIGHTON, ESQ. 16 ANGELA TOLAS, and 17 DENISE PATERNOSTER, OFFICIAL COURT REPORTERS

6 343 2 THE COURT: Mr. Irving, you want to make a 3 record, correct? 4 MR. IRVIN: Yes, your Honor. 5 THE COURT: Mr. Kraft, are you ready? Mr. Irvin 6 wants to put something on the record. 7 MR. KRAFT: Yes. 8 THE COURT: On the record, Mr. Irvin. 9 MR. IRVIN: Yes, your Honor. Jason Irvin, on 10 behalf of American Biltrite. It's our expectation today 11 that Dr. Markowitz will reference and speak to the AIA, the 12 Asbestos Information Association, an organization which, 13 for discreet years American Biltrite was a member, but a 14 non-participating member. They did not attend any 15 meetings.. 16 And there is several problems with this. On Dr. 17 Markowitz's report there are six documents enlisted, four 18 of those documents predate American Biltrite's membership 19 in that organization, and therefore cannot be used to 20 impute or suggest actual knowledge on their part. And the 21 actions of the AIA cannot, therefore, be held against 22 American Biltrite in any way. 23 The fifth document, your Honor, happened when 24 American Biltrite was, in fact, a member of the AIA. 25 American Biltrite did not attend this meeting, and I have 26 proof of that, but the document deals with the AIA's

7 344 2 lobbying efforts to Congress related to OSHA standards. 3 Under the Noerr-Pennington doctrine, lobbying 4 efforts are protected free speech that cannot be used to 5 suggest, impugn or import liability onto any party. I have 6 a pocket brief here for your Honor that I am giving you 7 entitled defendant American Biltrite's trial brief to 8 preclude evidence or reference to American Biltrite's 9 lobbying or government petitioning activities that I am 10 handing the Court and Mr. Kraft. 11 The sixth and final document, your Honor, simply 12 on its face deals with a state-of-the-art review 13 commissioned by the AIA, not at the behest of American 14 Biltrite. And the four corners of that document it has 15 nothing to do with American Biltrite and any interpretation 16 or suggestion of that document by Dr. Markowitz would be; 17 one, speculation; and, two, improper, because it would 18 necessarily be based on documents that should be precluded 19 because of American Biltrite's lack of involvement in AIA 20 before this time. 21 Also your Honor according to Mr. Markowitz's 22 designation, he is here to speak about and offer opinions 23 at the point in time in which all companies should have 24 been aware of the length between exposure to asbestos and 25 the development of various asbestos-related diseases such 26 as asbestosis, lung cancer and mesothelioma.

8 345 2 As American Biltrite is the only company in this 3 case who was a member of the AIA, this would not be as to 4 all companies or general state of the art, but specifically 5 as to what American Biltrite knew or should have known, and 6 therefore is outside the scope of his designation. 7 That's the text of my argument, your Honor, I'll 8 let Mr. Kraft respond. 9 THE COURT: Mr. Kraft. 10 MR. KRAFT: I'm fully aware of what Dr. Markowitz 11 can and cannot testify about given the fact that I have 12 probably put him on in cases more than anybody currently in 13 the courtroom. 14 I'm also aware of what he has been allowed to 15 testify about in the six or seven odd years since he began 16 testifying, including the fact that judges throughout the 17 State of New York and around the country have permitted him 18 to testify about these types of things. 19 The simple fact of the matter is I contest 20 whether Amtico actually participated in the AIA. I think 21 we'll show evidence that they signed statements in support 22 of the various positions set forth by the AIA, and actually 23 had members of their company on the board of directors of 24 this organization. 25 But regardless of that fact, Judge, what the AIA 26 said, what they did, what they accumulated is evidence of

9 346 2 what was available to be known by entities during the 3 relevant state of the art period in this case. 4 American Biltrite has admitted in answers to 5 interrogatories that they were members of the AIA from May through May 1980, and again from November 1983 through What the AIA did before American Biltrite became 9 a member was publically available information. It was 10 information that evinces what the AIA was. It wasn't just 11 a lobbying organization. It was an organization designed 12 strictly and solely to protect the interests of the 13 asbestos lobby. And I believe that is important 14 information for this jury to understand. 15 I would further point out there is probably no 16 one in the world more qualified to testify about the AIA 17 than Drs. Markowitz and Rosner. They have recently written 18 an article about the AIA. It was published in a peer 19 review journal. It discusses both the history of the 20 organization and the actual intent and purpose of this 21 organization over time. 22 The accumulation of documents from OSHA and the 23 position papers which were forwarded and made available to 24 members of the AIA are directly relevant to what was 25 available for American Biltrite to have known and 26 understood during the time period that they were making and

10 347 2 selling what I argued is a toxic poisonous cancer-causing 3 substance. 4 I will note for the record that the time period 5 in which American Biltrite was lobbying as they say, 6 actually protecting the interests of the asbestos lobby I 7 say, they were also selling vinyl asbestos floor tiles. 8 And my client was being exposed to their tiles both during 9 the time period that they were in this organization and 10 thereafter. 11 Counsel for American Biltrite argued to this jury 12 in opening statement that floor tiles were never banned. 13 And one of the reasons I suggest, and evidence that I will 14 offer to this jury to consider, is that their lobbying 15 efforts were successful. They weren't banned in large part 16 due to the misinformation campaign of the actual members of 17 the asbestos information association in terms of their 18 efforts in writing to OSHA the EPA, et cetera. 19 The underlying scientific information that they 20 accumulated about the hazards of asbestos go directly to 21 what all AIA members, including American Biltrite, had 22 access to in terms of the hazards of asbestos, and that's 23 why it's being introduced. 24 Dr. Markowitz's testimony will be subject to 25 connection with other evidence through the person of Roger 26 Marcus, the CEO of American Biltrite, regarding their

11 348 2 involvement in the AIA. 3 I've seen prior testimony of both Mr. Marcus and 4 some former corporate representatives of American Biltrite, 5 and I think it's going to surprise perhaps you, your Honor, 6 how little they actually know about what they did or didn't 7 do in the AIA. 8 And the evidence is clearly relevant. In the 9 State of New York all relevant evidence is admissible 10 unless the prejudicial effects substantially outweighs that 11 probative value. 12 I submit to you when a company says they don't 13 know what they knew about the hazards of asbestos, when we 14 could show documentary proofs of what they were given, a 15 jury should be able to consider that when assessing what 16 the companies actually knew, especially when the corporate 17 representative's going to come in and say: Well, I don't 18 know what we knew at various points in time. We have 19 direct evidence through documents which were made available 20 to the members of the AIA what these companies knew. 21 I think the lobbying doctrine that my adversary 22 cites is a red herring. We are not trying to hold them 23 liable for their lobbying efforts. We are never going to 24 argue to this jury that they should be held accountant we' 25 because they lobbied. What re going to argue is that 26 their lobbying efforts and the materials they accumulated

12 349 2 goes directly to what they knew or should have known during 3 the time period they were selling these ultra hazardous 4 floor tiles. 5 I haven't heard any argument. I haven't seen any 6 citations. I haven't seen any reference to any case law, 7 cases, courts, judges, anywhere in this state or across the 8 country, that have prohibited Dr. Markowitz from testifying 9 about this information. Quite frankly that's because I 10 don't believe there is a sound basis to prevent him from 11 testifying about this. It's clearly relevant to a crucial 12 point in this case that is going to be in dispute. 13 MR. IRVIN: May I respond, your Honor? 14 THE COURT: Sure. 15 MR. IRVIN: Mr. Kraft makes my point for me when 16 he says the lobbying efforts could have done this, would 17 have done this. What Noerr-Pennington goes to is you 18 cannot speculate about the AIA's involvement and what would 19 have happened without that involvement, or what would have 20 happened because of that involvement, that's rank 21 speculation, and it punishes the party for the free speech. 22 And Mr. Kraft is impugning liability especially 23 given his recklessness allegation against us based on these 24 efforts of the AIA. He says that we would be shocked if we 25 knew the involvement of American Biltrite in the AIA. But 26 I hand you a document called Asbestos Information

13 350 2 Association minutes which nowhere contains any language or 3 any reference to American Biltrite attending those 4 meetings. 5 Importantly though here I do not want us to start 6 we' tackling the world when re really tackling six documents 7 that have been listed in Mr. Markowitz's report, four of 8 which predate our involvement and in no way can be used as 9 if I joined the Boy Scouts today and I knew what they did 10 in That's not the way organizations work. 11 And so to try to impugn that against us is 12 unfair. But the point is what does this information or 13 this testimony seek to accomplish? That knowledge was 14 available to us. And its best day, that's what Markowitz 15 has another 110 pages on in his report. 16 But the prejudicial value of this certainly 17 outweighs that because he has other sources and other ways 18 to get to that information. None of the AIA documents he 19 referenced will specifically rifle shot any hazard with 20 regard to floor tile. That too is a overstatement. 21 But the prejudicial impact of this, and the fact 22 that it's clearly prohibited by Noerr-Pennington makes any 23 probative value of this evidence clearly not appropriate 24 given the damage and the harm it can do with Mr. Kraft's 25 charges against us. 26 Like I' ve you' said, ve got two documents in play

14 351 2 after we joined. One is the '76 letter that talks about, 3 or memo from a meeting we were not at, that talks about 4 lobbying efforts and positions with Congress. The second 5 is a retrospective state of the art type document that the 6 AIA had created that American Biltrite had no involvement 7 in. 8 So that document itself the four corners of it 9 might be admissible in some form, but an interpretation of 10 it would necessarily rely on information about lobbying 11 efforts and other such things, and Noerr-Pennington's 12 pretty broad, because it talks about lobbying efforts, or 13 any lobbying efforts in anticipation of litigation. All 14 these things make this information a time bomb. And 15 moreover it's specific to AIA. 16 He's basically becoming -- excuse me, specific to 17 ABI -- he is becoming an expert on what ABI should or 18 should not have known. He is designated for what all of 19 the finance, all companies should have known. And none of 20 these companies here are involved in the AIA. 21 That's all I have to say. I won't whoop a dead 22 horse, your Honor. 23 MR. KRAFT: I'm not sure my adversary understands 24 the state of the law in the State of New York, I'm not sure 25 how often he practices in this state. not 26 MR. IRVIN: Let's do the, "you' re not from

15 352 2 here" argument. 3 MR. KRAFT: But the statements that he made about 4 the Boy Scouts speak volumes to his lack of understanding 5 of New York law. What the Boy Scouts may have said in when you become a member of that organization and have 7 access to their statements are available to you. And, 8 therefore, relevant to what you knew or could have known or 9 should have known regarding a relevant issue in this trial. 10 Dartes versus Fiberboard sets forth that if any 11 company would have access to information that is relevant 12 to what other companies could have had access to. So the 13 fact that the AIA had access to information about the 14 hazards of floor tiles, in particular in the documents that 15 counsel references, there is a discussion of vinyl asbestos 16 floor tiles. That entity having access to that information 17 suggests that the members of that organization had access. 18 I have no idea why American Biltrite, while being 19 voted to the board of directors, chose not to go to 20 meetings. But what I can tell you is they certainly had 21 access to the meeting minutes, the publications, the 22 letters of this organization. And I'm going to show you, 23 Judge, they actually signed on as an organization saying: 24 We agree with these statements of the AIA during a time 25 period relevant to this case. 26 So if I had to prove that AIA specifically knew

16 353 2 everything, granted I may not be able to do that. All I 3 have to show is that it was publically available for AIA. 4 And that will be proven beyond any doubt in the manner of 5 Dr. Markowitz's testimony. 6 Also, Dr. Markowitz is here to talk about what 7 was available to everyone. He is not going to focus on ABI 8 acknowledge. He will never say American Biltrite knew X, 9 American Biltrite knew Y. He is going to lay the 10 foundation for the jury to determine based upon discussion 11 about publically available information of what American 12 Biltrite knew or should have known. 13 If their corporate rep would come in and admit: 14 Hey, we knew about the hazard, we wouldn't have to have 15 this discussion. But they are going to come in and say: 16 We don't know what we knew about the hazards at any given 17 particular point in time, we never tested the hazards, we 18 never investigated the hazards. 19 So the jury should be allowed to look at all of 20 the evidence, all of the organizations that they were 21 members of, to assess what in real time they could have and 22 should have been doing. That's why this is relevant and 23 admissible. 24 THE COURT: What about their lobbying efforts, is 25 that something that your witness is going to talk about? 26 MR. KRAFT: American Biltrite's lobbying efforts

17 354 2 no, the AIA's lobbying efforts yes, because they were not 3 lobbying in the way that a typical company lobbies. It 4 became a defensive effort. They were seeking to not -- I 5 think Dr. Markowitz's article talks about it best, let me 6 pull it out. 7 Drs. Markowitz and Rosner on February of published an article entitled Unleashed On An Unsuspecting 9 World, The Asbestos Information Association And Its Role In 10 Perpetuating A National Endemic. 11 The AIA, as Dr. Markowitz and Rosner establish in 12 the paper, claimed, wrote, discussed, that their efforts 13 affected the Occupational Safety and Health 14 Administration's adoption of regulations regarding consumer 15 products. 16 Their efforts, the AIA, affected OSHA'S placing 17 of warnings regarding the hazards of asbestos on products. 18 It wasn't a lobbying effort, your Honor. The efforts of 19 the AIA was a defend the asbestos industry effort not to 20 protect worker health or do the right thing, this was a 21 defensive mission. 22 And, Judge, I'll hand you up the article, I'll 23 let you read the article, Drs. Markowitz and Rosner go 24 through great detail in talking about the formation of this 25 organization, talking about the lobbying efforts to some 26 extent of this organization.

18 355 2 One of the things that's going to be discussed, I 3 expect, is a speech by Matthew Swetonic, the Secretary of 4 this organization. He gave a speech in 1973 to this 5 organization that talked about varying things, including 6 the hazards of asbestos. 7 And what he said was, you know, from industries 8 perspective the good thing is no one's listening, no one's 9 taking any notice of all of the this hullabaloo about the 10 hazards of asbestos. That's a good thing for industry. 11 He's going to talk about the 1976 letter to OSHA 12 which included information from the AIA, which included an 13 analysis of the varying hazards specific to asbestos floor 14 tiles. So I understand, you know, Noerr-Pennington, I get 15 we' that. But re not seeking to hold them responsible for 16 their lobbying efforts. And if the instruction needs to be 17 crafted, we can figure out an instruction that would be 18 appropriate in this situation. 19 What they are trying to do is erase their 20 involvement in an organization which perpetuated the sale 21 of products that killed people. They were members in that 22 organization. And what more speaks to the conscious 23 disregard for the safety of others than that type of 24 participation while they are selling and profiting from a 25 product which will eventually play a role in killing one of 26 my clients.

19 356 2 It's directly relevant not only to their 3 negligence but also their recklessness. I'll hand up the 4 article, I'm not going to get to this probably even today. 5 I know that we have a brief directly responsive to this. I 6 would ask for an opportunity, if your Honor wants to 7 reserve ruling, for us to submit that brief so you can read 8 why Noerr-Pennington doesn't apply in this scenario. Given we' 9 that re stopping 20 minutes from now so everyone can go 10 we' home, I don't think re going to get there, Judge. 11 MR. IRVIN: One other thing, your Honor, if I 12 may. What the article says in the last sentence is, "In 13 retrospect thousands of lives may have been saved if he and 14 the Asbestos Information Association had said this 15 earlier." That's rank speculation. I mean how in the 16 world would this gentleman know that the wheels of 17 government would have changed direction but for this simple 18 action. That's absolute speculation. 19 The other thing is that Mr. Kraft said ABI did 20 not test, they did not warn, he went through this litany. 21 The first exposure in this case is 1981 by which we did 22 test, by which we warned. I understand the Court said 23 that. 24 And then lastly, your Honor, I would mention that 25 in the brief you'll see that even the Southern District of 26 New York in the United States Football League versus

20 357 2 National Football League said that this is, in fact, unduly 3 prejudicial. 4 THE COURT: All right. 5 MR. IRVIN: I definitely would like this to be 6 revisited especially if this article ever gets shown to the 7 jury, because the first page is obviously -- it's in my 8 brief. 9 MR. KRAFT: I believe my adversary's opening 10 statement was "Show me". "Show me", was it you that had 11 Mohammed Ali? 12 MR. IRVIN: Yes. 13 MR. KRAFT: we' Judge, that's exactly what re 14 we' doing, re showing them what they actually had access to 15 in real time. He wants to put Mohammed Ali up there, I'm 16 going to put someone up there to knock Mohammed Ali down 17 where he belongs. 18 THE COURT: The Court reserves decision. You 19 will have an opportunity to put in your brief, Mr. Kraft, 20 then we'll talk about this issue at the later time. 21 MR. PALMIOTTO: Your Honor, I hate to stop the 22 wheels of justice, I understand now Mr. Kraft is using a we' 23 PowerPoint that we have not seen and re not aware he was 24 using one. 25 MR. KRAFT: Okay. 26 MR. PALMIOTTO: I don't have a general problem

21 505 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - CIVIL BRANCH - PART: X ROGER CARILLI, Plaintiff, INDEX -against /15 NO. BURNHAM, LLC, Individually and as successor to BURNHAM CORPORATION, CROWN BOILER CO., f/k/a CROWN INDUSTRIES, INC., THE FAIRBANKS COMPANY, and JENKINS BROS., X Defendants. 71 Thomas Street New York, New York October 2, 2017 B E F 0 R E: HONORABLE MANUEL J. MENDEZ, Justice, and a jury A P P E A R A N C E S: WEITZ & LUXENBERG Attorneys for Plaintiff 700 Broadway New York, New York BY: DANNY R. KRAFT, JR., ESQ. BENJAMIN DARCHE, ESQ. McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Co Northwest 17th Way - Suite 202 Fort Lauderdale, Florida BY : JANNA M. NUZUM, ESQ. McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Company 300 International Drive - Suite 100 Buffalo, New York BY: SUSAN CHARTERS, ESQ.

22 506 2 APPEARANCES CONTINUED: 3 CLYDE & CO., US, LLP Attorneys for Jenkins Brothers Lexington Avenue New York, New York BY: JEFFREY FEGAN, ESQ. 6 MALABY BRADLEY Attorneys for Crown Boiler Co Broadway Suite 600 New York, New York BY: STEPHEN NOVAKIDIS, ESQ. 9 DEHAY ELLISTON, LLP Attorneys for Burnham South Charles Street - Suite 1400 Baltimore, Maryland BY: VINCENT J. PALMIOTTO, ESQ. 12 McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP Attorneys for Burnham, LLC Mount Kemble Avenue Morristown, New Jersey BY: NANCY MCDONALD, ESQ. 15 LEWIS, BRISBOIS, BISGAARD 6 SMITH Attorneys for Peerless Industries, Inc Water Street - Suite 2100 New York, New York BY: STEPHEN M. BABINECZ, ESQ. 18 ANGELA TOLAS, and DENISE PATERNOSTER 19 OFFICIAL COURT REPORTERS

23 507 2 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - CIVIL BRANCH - PART: X 4 ERNEST GILBERT, Plaintiff, 5 INDEX NO. -against / THE FAIRBANKS COMPANY, 8 Defendant X 9 71 Thomas Street B E F 0 R E: New York, New York October 2, 2017 HONORABLE MANUEL J. MENDEZ, Justice, and a Jury A P P E A R A N C E S: WEITZ & LUXENBERG 15 Attorneys for Plaintiff 700 Broadway 16 New York, New York BY: DANNY R. KRAFT, JR., ESQ. 17 BENJAMIN DARCHE, ESQ. 18 McGIVNEY, KLUGER 6 COOK, PC Attorneys for The Fairbanks Co Northwest 17th Way - Suite 202 Fort Lauderdale, Florida BY: JANNA M. NUZUM, ESQ. 21 McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Company International Drive - Suite 100 Buffalo, New York BY: SUSAN CHARTERS, ESQ. 24 ANGELA TOLAS, and 25 DENISE PATERNOSTER, OFFICIAL COURT REPORTERS 26

24 508 2 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - CIVIL BRANCH - PART: X 4 THOMAS GALLEN and MAURA GALLEN, Plaintiffs, 5 INDEX NO. -against /15 6 AMTICO, COLUMBIA BOILER COMPANY OF POTTSTOWN, THE 7 FAIRBANKS COMPANY, and KOHLER COMPANY, 8 Defendants X 71 Thomas Street 10 New York, New York October 2, B E F 0 R E: 13 HONORABLE MANUEL J. MENDEZ, Justice, and a jury 14 A P P E A R A N C E S: 15 WEITZ & LUXENBERG 16 Attorneys for Plaintiffs 700 Broadway 17 New York, New York BY: DANNY R. KRAFT, JR., ESQ. 18 BENJAMIN DARCHE, ESQ. O' 19 MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY, PC Attorneys for Columbia Boiler Company 20 One Penn Center 1617 John F. Kennedy Boulevard - Suite Philadelphia, Pennsylvania BY: THOMAS J. JOHANSON, ESQ. 22 CAROL TEMPESTA, ESQ. NATHAN CHIARAVALLOTI, ESQ. 23 McGIVNEY, KLUGER 6 COOK, PC 24 Attorneys for The Fairbanks Co Northwest 17th Way - Suite Fort Lauderdale, Florida BY: JANNA M. NUZUM, ESQ.

25 APPEARANCES CONTINUED: 3 McGIVNEY, KLUGER & COOK, PC Attorneys for The Fairbanks Company International Drive - Suite 100 Buffalo, New York BY: SUSAN CHARTERS, ESQ. 6 HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP Attorneys for Kohler Company 7 40 Paterson Street PO Box New Brunswick, New Jersey BY: ALAN I. DUNST, ESQ. 9 MONICA R. KOSTRZEWA, ESQ. 10 HAWKINS, PARNELL, TRACKSTON & YOUNG, LLP Attorneys for American Biltrite, Inc Cole Avenue - Suite 500 Dallas, Texas BY: JASON J. IRVIN, ESQ. 13 KUROWSKI & SHULTZ Attorneys for American Biltrite, Inc Green Mount Road - Suite 400 O'Fallon, Illinois BY: ROBERT C. CREIGHTON, ESQ. 16 ANGELA TOLAS, and 17 DENISE PATERNOSTER, OFFICIAL COURT REPORTERS

26 510 2 THE COURT: This is on the American Biltrite motion 3 to preclude any mention of their lobbying efforts or prevent 4 the witness from mentioning, testifying about any efforts on 5 behalf of American Biltrite to lobby. 6 MR. KRAFT: Yes, your Honor. 7 What I have handed up to the Court this morning is 8 plaintiff's trial brief in opposition to defendant's 9 American Biltrite's motion seeking to preclude relevant 10 evidence referencing American Biltrite's lobbying in 11 government petition activities vis-a-vis the Asbestos 12 Information Association and Resilient Floor Covering 13 Institute. 14 I also have included Westlaw case United States 15 Football League versus National Football League, a case that 16 American Biltrite actually cites in its memorandum to seek 17 preclusion of the evidence. 18 I included underlying cases of Noerr, N-O-E-R-R, 19 and Pennington, as well as a California Appellate Court 20 Hernandez v. Amcord. 21 And to summarize what the brief says for the 22 record, which I think clearly will show this Court or any 23 reviewing Court why the evidence we seek to introduce is 24 admissible.. 25 American Biltrite's moving papers seek to preclude 26 certain evidence citing the Noerr Pennington Doctrine, and

27 511 2 they misapply the Noerr Pennington Doctrine in an effort to 3 restrict plaintiff's ability to introduce relevant and 4 probative evidence in this case. 5 If you look at their moving papers, paragraph two 6 they say: Numerous courts nationwide, including New York 7 State courts and the Second Circuit, have applied the Noerr 8 Pennington Doctrine to preclude civil liability for the 9 exercise of First Amendment rights. 10 Plaintiff's counsel does not dispute that. We are 11 not seeking to introduce evidence of their lobbying and 12 petitioning activities, their membership and associations 13 and the knowledge that they gathered from those 14 associations, as a vehicle to -- in and of itself to prove 15 liability. 16 They note that courts in paragraph three have 17 applied the doctrine to conspiracy claims. There is no such 18 claim in this case. Subparagraph B of their moving papers 19 at Page 3, none of the exceptions to Noerr Pennington 20 Doctrine apply to ABI, and they waste two pages talking 21 about exceptions to the Noerr Pennington Doctrine; the sham 22 exception and the corruption exception. We're not utilizing 23 either one of those to seek admissibility of this evidence. 24 What I think is interesting, your Honor, is they 25 haven't been able to cite a single New York State case at a 26 trial or appellate level, or any court across the country,

28 512 2 that has precluded evidence similar to the evidence 3 plaintiff is seeking to introduce in a products liability or 4 negligence case. 5 They attempt to cite the NFL case as an example of 6 where a court has precluded lobbying efforts. But what they 7 failed to tell you in their moving brief, your Honor, is 8 that the NFL case was an anti-trust litigation claim, the 9 exact type of scenario that Noerr Pennington sought 10 preclusion of particular conduct. 11 Because what Noerr Pennington basically was, it was 12 an immunity type doctrine; immunity from civil liability in 13 exercising your civil rights. What it was not, and what 14 Noerr Pennington says it was not, an evidentiary exclusion. 15 And the cases Noerr and Pennington themselves say that 16 evidence which is probative; underlying lobbying and 17 petitions activity may be introduced if it's probative, if 18 it's relevant to the case at hand, if the probative value 19 and relevance of the evidence are not unduly prejudicial and 20 substantially outweighed by prejudice using a 403 type 21 analysis. 22 We are not seeking to introduce evidence to say 23 that their lobbying and petitioning activity in and of 24 itself proves liability. And I think all of the cases that 25 have addressed Noerr Pennington from an evidentiary 26 perspective have suggested to trial courts like your Honor

29 513 2 that when you allow this evidence to come in, it is proper 3 to tell the Court -- to tell the jury that lobbying and 4 petitioning activity by a corporation is protected by the 5 First Amendment, just as lobbying and petitioning activity 6 of a private individual would be protected. 7 But the introduction of that evidence in cases like 8 this, where the knowledge of the hazards of asbestos are at 9 issue, directly fall within sort of the contemplated 10 discussion in Noerr Pennington about why evidence should be 11 admitted. And we go through great lengths in our trial 12 brief to explain to the Court why such evidence is 13 admissible. 14 But I think the best example, and the clearest 15 analysis of this issue in the context of an asbestos case, 16 the only case that I could find in the country where Noerr 17 Pennington was addressed in the context of an asbestos case 18 is the Hernandez v. Amcord case from 2013 in California. 19 In the Amcord case in California, the plaintiff's 20 at trial sought to introduce evidence of the particular 21 trial defendants' efforts to petition local elected 22 government officials in the state of California to, in 23 effect, allow for exceptions for the continued use of 24 asbestos products. 25 The plaintiff's in that case were seeking to 26 introduce that evidence to show that the defendants had

30 514 2 actual knowledge of the hazards of asbestos inherent in 3 their products. The trial court precluded the use of that 4 evidence and cited the Noerr Pennington Doctrine as the 5 reason why they excluded the evidence. 6 Plaintiffs appealed and the California Appellate 7 Court in 2013, if you look at, your Honor, Page 12 of 8 Hernandez under section two of the Court's decision entitled 9 exclusion of evidence of lobbying activity, the Court goes 10 through a careful analysis of the evidence sought to be 11 introduced, and it lays out those pieces of evidence. 12 There is an exhaustive discussion about the 13 standard of review, and it's basically an abusive discretion 14 standard of review, similar to what the standard would be 15 here in New York of an Appellate Court reviewing a trial 16 court's evidentiary decisions. 17 Then at Page 13, under paragraph B, a very specific 18 analysis of Noerr Pennington is made, and I think some of 19 the highlights of this decision should be placed on the 20 record. 21 First, the Appellate Court in California 22 considering the exact issue before your Honor says, quote: 23 "The Noerr Pennington Doctrine provides that there 24 is no anti-trust liability under the Sherman Act for efforts 25 to influence government which are protected by the First petition redress of even 26 Amendment right to for grievances,

31 515 2 if the motives behind the efforts are anti-competitive." 3 There is no allegation in this case of any 4 anti-trust violation. There is no anti-trust claim. There 5 is no liability stemming from an anti-trust violation, even 6 remotely possibly relevant or in play in this case. 7 The California Appellate Court discusses the facts 8 of both Pennington and Noerr in the paragraphs underneath 9 that initial statement. At the bottom of Page 13, the 10 Appellate Court writes: 11 "Thus, the Noerr Pennington Doctrine is a doctrine 12 of substantive law which shields defendants from liability 13 based on their legitimate right to petition government 14 officials." We don't take any issue with that. 15 Next paragraph: "However, the Noerr Pennington 16 Doctrine is not a rule of evidence." And that's exactly 17 we' what re considering here today, the introduction of 18 evidence. 19 The Court considers a number of cases in the 20 context of anti-trust litigation where courts and the 21 country admitted for evidentiary purposes lobbying and 22 petitioning activities because they were relevant to the we' 23 case at hand, similar to the information re seeking to 24 introduce today being relevant to the issue of defendant's 25 understanding of the hazards of asbestos. 26 After a full review of the underpinnings and facts

32 516 2 of Noerr Pennington, after an analysis of the progeny of the 3 cases applying Noerr Pennington in the civil liability 4 context, the Court comes to its holding in conclusion that 5 the trial court's reliance on Noerr Pennington to exclude 6 evidence in the negligence strict liability case was a 7 misapplication of the doctrine. 8 And that's exactly the point. We're seeking to 9 introduce evidence, your Honor, that American Biltrite, 10 through it's membership in both the Asbestos Information 11 Association and the Resilient Floor Covering Institute, 12 actually had notice of the hazards of asbestos, or certainly 13 had access to notice about those hazards. 14 Their participation and lobbying efforts regarding 15 OSHA's efforts to reduce the standards show the level of 16 knowledge that they had. We are not ever going to argue 17 that simply because they were part of this organization they 18 are liable. It is merely meant to show what American 19 Biltrite, through its efforts, through its conduct, through 20 its membership had access to and actually knew. 21 When Mr. Marcus comes -- I had a chance last night 22 to review several prior testimonies at deposition of 23 Mr. Marcus. He was deposed in January of this year. 24 THE COURT: Hold on. The witness is in the 25 audience, can we have him step out? 26 MR. KRAFT: I'm sorry. Dr. Markowitz, if you could

33 517 2 step out. 3 (So done.) 4 MR. KRAFT: I expect Mr. Marcus to testify 5 consistently with the sworn testimony that he's given at 6 prior depositions. 7 In January of this year the lawyer, Ben Bradley 8 (phonetic) from the Deane firm had an opportunity to sit 9 down and ask Mr. Marcus questions, and asked him extensive 10 questions about the level of knowledge of American Biltrite. 11 And what the Court will see on Thursday when 12 Mr. Marcus comes to testify is American Biltrite uses the there were three floods in Trenton, we don't really know 14 what we knew because the documents that were made in 15 realtime have been destroyed as the result of three 16 successive floods of our Trenton facility. 17 THE COURT: Yes. 18 MR. KRAFT: Mr. Marcus, while admitting some 19 knowledge of the hazards of asbestos, certainly will not 20 admit to the totality of the knowledge of American Biltrite 21 regarding what they actually knew and understood. Their 22 membership in the Asbestos Information Association, their 23 access to the medical documentation is relevant, important, 24 necessary information to prove exactly what American 25 Biltrite knew or should have known. 26 I' ve had a chance to look at the documents that I'm

34 518 2 planning to discuss with Dr. Markowitz. They are limited. 3 One of them is the August 3, 1973, for lack of better terms, 4 the Mathew Swetonic, S-W-E-T-O-N-I-C, speech to the Asbestos 5 Textile Institute. 6 Mr. Swetonic was the executive secretary of the 7 Asbestos Information Association of North America. And what 8 I expect the testimony throughout the course of this trial 9 will be is that the information of the Asbestos Information 10 Association was shared with member companies, including 11 American Biltrite, during relevant years. It was certainly 12 available to member companies at all times throughout their 13 membership. 14 And, importantly, what this 1973 document shows is 15 the Asbestos Information Association's understanding of the 16 history of knowledge regarding the hazards of asbestos, the 17 regulatory efforts made in this country to deal with those 18 efforts. 19 And, interestingly, what Mr. Swetonic concludes in 20 his speech in 1973 is that while there has been all of this 21 publicity about the hazards of asbestos which is adverse to 22 industry's position, the average American workmen hasn't 23 taken notice. And that's exactly the point why warnings on 24 American Biltrite products as contemplated, not by OSHA this isn't an OSHA case -- but as contemplated by state 26 product liability laws were so important.

35 519 2 And it's one of the earliest and clearest examples 3 of an organization that American Biltrite was part of 4 recognizing that workers were not being advised of the 5 hazards of the various products that the member companies 6 were making, selling and distributing. 7 The second document is an August 26, 1976 memo to 8 the members. And at this point American Biltrite was a 9 member. Albeit, Mr. Marcus is going to say we were an 10 associate member and we didn't participate. I'm not exactly 11 sure how he is going to be able to corroborate that, but 12 even if you take him at his word, they were a member of this 13 organization on August 26th of The Asbestos Information Association includes 15 OSRA's statement of work for an engineering feasibility 16 study. And it goes on from the Research Triangle Institute, 17 which had been commissioned by the Asbestos Information 18 Association and shared with its members. 19 Importantly, what this document sets.forth in is an understanding that there are some 60,000 end product 21 users who are being exposed to asbestos in this country; 22 their being exposed to a myriad of asbestos forms, including 23 chrysotile. 24 Most importantly, it sets forth exposure to 25 asbestos fibers, even nonrecurring exposures of short 26 duration where asbestos fibers are inhaled, seriously

36 520 2 increase the risk of developing both pleural and peritoneal 3 mesothelioma. 4 It goes on to set forth that asbestos-related 5 diseases have long periods. The hazards have been known 6 since 1900, and exposure can occur in a number of 7 construction activities, including work with vinyl asbestos 8 floor tiles, sheet vinyl flooring, packings and gaskets, 9 insulation, et cetera -- all products at issue in this case. 10 Despite having access to this knowledge, your 11 Honor, American Biltrite, from the time that they first 12 manufactured an asbestos floor tile in 1961 until 1979, 13 never performed any testing to determine what level of 14 asbestos fibers are released from their products when 15 workers like my clients used the floor tiles in the exact 16 way that American Biltrite in their installation manuals 17 told workers like Mr. Gallen to use their tiles. 18 This is extremely critical and crucial evidence of 19 information that was possible to be known, if not actually 20 known, by American Biltrite. 21 The next document is the September 8, 1976 Annual 22 Meeting Minutes. Importantly, Mr. Marcus is going to say to 23 this jury, or attempt to say to this jury, we were not 24 active participants in the Asbestos Information Association. 25 This shows that on September 8th of 1976, American 26 Biltrite's Robert Van Buren was nominated to the Board of

37 521 2 Directors of this association. 3 Clearly, a member of the Board of Directors whose 4 company is a member of the organization, at the very least, 5 would have access to the information being provided by the 6 Asbestos Information Association in realtime at a time 7 before my client was exposed to their products in the United 8 States. 9 And, finally, December 21, 1976, at a time when 10 American Biltrite was a member, there is a document sent to 11 the members of the Asbestos Information Association entitled 12 Reexamination and Update of Information on the. Health 13 Affects of Occupational Exposure to Asbestos. 14 Mr. Marcus is going to say we don't know at 15 American Biltrite if we received this because our documents 16 are destroyed, even though Mr. Marcus was there in realtime, 17 their company was a member of this organization, and this 18 document indicates it was sent to the members of the 19 organization (indicating). 20 What this purports to say is that the OSHA 21 standard -- and Mr. Marcus is going to talk about the OSHA 22 standard -- he attempts to say that the OSHA standard 23 doesn't require them to place warnings on their products. 24 Incorrectly so. 25 He attempts to argue to the jury through his 26 testimony that the OSHA standard was a safe level of

38 522 2 exposure to asbestos, and to use the OSHA standard to 3 somehow say vinyl asbestos floor tiles are safe. 4 In 1976, the organization received paperwork and 5 information about the NIOSH revised standard which says 6 exactly the opposite. What this document says is that the 7 standard established in '72 was only designed to prevent 8 asbestosis with the open recognition that it would not 9 prevent asbestos induced neoplasms. 10 Under the recommended standard, it talks about all 11 forms of asbestos being hazardous. Mr. Marcus will attempt 12 to say at trial that the chrysotile used in their products 13 was a safe form of asbestos. I don't know how he can say 14 that given the fact that Amtico's own plant workers 15 developed asbestos-related diseases, including mesothelioma, 16 from the only form of asbestos they ever used, chrysotile. 17 But he's going to attempt to say that. 18 Further, this document goes on to say that cancer 19 risk -- excessive cancer risk has been demonstrated at all 20 fiber concentration studied to date up to 1976, and that the 21 evaluation of all the human data provide no evidence of a 22 threshold or a safe level of asbestos exposure. 23 During this time, Judge, with this information 24 being presented to member organizations of the Asbestos 25 Information Association, American Biltrite did exactly 26 nothing to test whether their products were dangerous. And

39 523 2 I believe the jury should have an opportunity to assess the 3 information available to American Biltrite when assessing 4 how negligent and how reckless their conduct was. 5 Finally, there is a 1981 letter regarding conduct 6 and comments about the New York State's effort to require 7 certain labeling and certain additional information being 8 provided to consumers sent by the Asbestos Information 9 Association to its membership with a push that the 10 membership contact the senators in the State of New York to 11 attempt to affect New York law on the issue of warnings and 12 labels. 13 Clearly, your Honor, although the evidence will 14 demonstrate that American Biltrite was fully aware of the 15 hazards, was fully aware that workers using their products 16 were not being warned about the hazards, they will admit 17 that they never warned about the installation of floor tiles 18 being cut or snapped or scored, exactly as they suggested 19 should be done. we' 20 That is why re seeking to introduce evidence 21 that they gleaned from their membership from their 22 quote/unquote "lobbying or petitioning activities," because 23 it's relevant to a material issue in this case. And the 24 Noerr Pennington Doctrine has never -- and I repeat, 25 never -- been used to exclude such evidence. 26 I asked my adversaries if I'm wrong on that issue

40 524 2 to site a single case in this country that has ever excluded 3 the evidence that they're seeking to introduce, that has 4 ever considered excluding the evidence that they're seeking 5 to introduce, or any case around the country that has 6 excluded asbestos-related knowledge and notice information 7 citing the Noerr Pennington Doctrine, and I'm fairly 8 certain, your Honor, that they will not be able to cite a 9 single case because they haven't done so already in their 10 initial moving papers. 11 MR. IRVIN: May it please the Court. There are a 12 couple of things, and then I want to zoom back out for a 13 minute. 14 Counsel for plaintiffs mentioned four articles or 15 four papers that he wanted to show this jury. Only two of 16 those are on SOA 4, which is the annotated bibliography of 17 this witness, and thereby the December paper and the paper were not disclosed in his report and he should not be 19 allowed to testify about that. 20 What Mr. Kraft said about the September document are the simple statements there. I don't 22 understand why or how a witness, a historian could comment. 23 It sounds like they want to have him just simply read in the 24 document, which would be improper in and of itself. 25 I think those are very simple and easy arguments 26 that this information and the context of those documents

41 525 2 could be used with Mr. Marcus on Thursday, but this 3 historian should not be allowed to just read those 4 documents. And from what I've heard here, that concerns me. 5 Let me further back up a little bit. With regard 6 to the Noerr Pennington Doctrine and the like efforts, if 7 Mr. Kraft is correct that he really just wants to get this 8 jury to understand that this organization had possessed 9 certain knowledge, then it's lobbying efforts have nothing 10 to do with that. That is a red herring. 11 Statements of this organization about testing 12 asbestos or, for example, he said in a December '76, a work 13 feasibility study that it showed asbestos floor tile 14 released dust -- no, it says floor tile can contain 15 asbestos. But these simple statements there that he wants 16 to get in about notice have absolutely nothing to do with 17 lobbying efforts. 18 And what gives me great pause about the lobbying 19 efforts is that Mr. Markowitz says -- excuse me, Professor 20 Markowitz says that who would have known, what would have 21 happened if these lobbying efforts have not taken place had not taken place, let's use proper English; that is rank 23 speculation, and that is exactly what Noerr Pennington in 24 the football case goes to. 25 And it cays -- it talks about this information 26 being presumptively prejudicial, although Rule 403 requires