SIMMONS HANLY CONROY 51MMONSFIRM.COM A NATIONAL LAW FIRM (800) February 20, 2018 BACKGROUND

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1 SIMMONS HANLY CONROY 51MMONSFIRM.COM A NATIONAL LAW FIRM (800) From the desk offames M. framer February 20, 2018 Via NYSCEF & Hand Delivery Hon. Manuel J. Mendez New York City Civil Court, New York County 71 Thomas Street, Room 209 New York, NY Re: Mary Murp1ty-Clagett as Temporary Administrator of the Estate of Pietro Macaluso v. A.O. Smith Corp., et al., Index No /2015 Justice Mendez, Plaintiff in the above-captioned case respectfully submits the following motion in limine to preclude Defendant A.O. Smith from attempting to admit at trial speculative, prejudicial evidence uncorroborated by actual competent record evidence. BACKGROUND Defendant seeks to call a witness from H.B. Smith to describe its boilers and their possible asbestos content. Defendant's entire basis for doing so, however, lies in the factually-incorrect premise that Plaintiff Pietro Macaluso incorrectly identified Defendant's boilers during his deposition. Indeed, Plaintiff clearly identified defendant A.O. Smith's products during both days of his discovery deposition testimony detailing his work as a general laborer removing and cleaning up debris from boilers and heating equipment. Despite his unequivocal (and indeed, unchallenged) identification while Plaintiff was alive and able to testify, A.O. Smith has tellingly waited until the time of trial (and after Plaintiff's death from mesothelioma) to improperly suggest' to the jury that Plaintiff's testimony matched a different, unidentified non-party. However, beyond pure inadmissible speculation, A.O. Smith will be unable to make this leap. Plaintiff's unequivocal identification of A.O. Smith boilers during his two days of testimony encompasses the following: ' During oral argument on A.O. Smith's motion seeking a commission to subpoena H.B. Smith's witness, counsel for A.O. Smith suggested to the Court that this witness's testimony was relevant to clarify Plaintiff's supposedly ambiguous identification, going so far as stating that Plaintiff had testified to working "Smith" on simply boilers. No such testimony, however, exists supporting Defendant's representation; Smith" indeed, at every instance, Plaintiff unambiguously identified "A.O. as the manufacturer of boilers he encountered during his time as a general laborer, as shown, inpa.

2 Q. Do you know the brand, trade, or manufacturer's name of the new furnace you installed? A. I think it was A.O. Smith. Q. Do you know the brand name, trade name, or manufacturer's name of any of these old heating units that you replaced? A. It was Carrier, A.O. Smith, American. Several others, I can't take off -- you know, pick them off the top of my head. Q. Okay. And one of the manufacturers of the boilers that you removed while you worked for Bruno was A.O. Smith? Q. And how did you identify an A.O. Smith boiler? A. I think you guys had a big stamped -- onto the cast iron, your Smith." name, "A.O. Q. Okay. And can you estimate for me: How many A.O. Smith do you think you removed while you worked for Bruno? A. Oh, there was a lot. I can't give you an estimate. Q. More than 20? A. I think so. Q. Okay. How about less than 50? A. Might have even been close to 50 or more. Q. 50 or more? A. Yeah.

3 Q. Okay. Do you know what a water tube or a fire tube boiler is? A. No. Q. So you wouldn't know if these A.O. Smith boilers were water tube or fire tube? A. Right. Q. And the A.O. Smith boilers you removed, where were they located in the houses? Were they in the basement? Were -- they A. Yeah, the units were most basement. - generally speaking, located in the Q. Okay. Take me through the steps in the process of removing an A.O. Smith boiler. A. We'd use a crowbar to separate the sections together, and then the sledgehammer to fully separate the units from the different sections. Sometimes the units were too big, and we had to get it down to a smaller size that we could get into a wheelbarrow. Q. Okay. And you said you saw external insulation on the outside of the A.O. Smith boilers? Q. And besides the A.O. Smith boilers you removed while you worked for Bruno, have you worked - ever worked with or around any other A.O. Smith products?

4 A. I think I worked with the newer A.O. Smith boilers, as well. Q. So did you see any markings or logos on this new unit that you indicated was manufactured by A.O. Smith? A. Yeah, it had a -- it had -- instead of pressed on the outside, it was pressed on aluminum, iron or aluminum, on the exterior. Q. What was pressed on the outside? A. The -- I think you guys later switched from the basic emblem to something that was snapped on, meaning a name label. Sorry. Q. Okay. But you earlier -- Q. -- testified that you -- you didn't know who manufactured the new boiler that you installed at A. Yeah, generally, I can't remember; but I do remember seeing A.O. Smith because it was my house and I later -- later lived there. I can't remember exactly what I installed in the field; but the one at my house, I can tell you. Q. Okay. Did you participate in the installation of this A.O. Smith boiler at your house? A. No. Q. Did you -- strike that. Were you around others while they installed the A.O. Smith boiler at the Yes. Q. Okay. And can you describe this A.O. Smith boiler for me?

5 A. It was literally the size of a refrigerator that goes underneath a table; that wide (indicating), this tall (indicating), and this deep (indicating). Q. Can you give me those dimensions in feet, verbally? A. 1 1/2 feet deep by 2 feet wide by 2 feet high. Q. And what type of fuel did that boiler burn? A. Gas.2 Q. Okay. So this A.O. Smith boiler you saw the plumber install, do you know if it was a sectional boiler? Or was it just -- A. I don't know -- one of the small ones I just described. Q. So just -- to you, it looked like it was just one piece? A. Yeah. Q. The next brand of -- or manufacturer of boilers that you remember was A.O. Smith. When did you first remove an A.O. Smith boiler? A Q. When did you last remove an A.O. Smith boiler? A Q. Did you remove A.O. Smith boilers between 1972 and 1982? Q. Did you use the same work practices when - 2 Defendant concedes that gas is a type of fuel used to power their boilers, just as Mr. Macaluso remembered. See Aff. of Misha Shah at 3.

6 you' Q. -- when removing A.O. Smith boilers as you've described with other boilers? Q. Did you breathe in the asbestos dust from the external insulation and the rope gaskets on these A.O. Smith boilers? Q. Was that visible dust? Q. The -- the - the A.O. Smith boilers, were they the vertical oval, slash, round type; or were they the horizontal rectangular shape? A. I don't recall. I don't recall. Q. Was it one or the other? A. Yes, it was one or the other. [See, e.g., Ex. 1, Relevant Excerpts of Plaintiff's Discovery Deposition at 53:15-17, 91:22-92:2, 170:23-171:4, 172:2-12, 174:22-175:2, 175:11-15, 176:7-13, 177:23-25, 179:20-24, 182:14-183:14, 184:11-20, 186:18-25, 255:21-257:1 (emphasis added) (internal objections omitted)]. of "H.B. Critically, most of Plaintiff's identification of A.O. Smith boilers (without a single mention Smith" boilers) was elicited by A.O. Smith's own counsel. Finally, the proper time to address such an issue would have been while Plaintiff was alive and able to respond to questions about his identification. Tellingly, however, Defendant's desperate attempt to bastardize Plaintiff's testimony only comes now, after Plaintiff's death and on the eve of trial. As New York law is clear that such irrelevant and prejudicial evidence is inadmissible, A.O. Smith should not be permitted to call the H.B. Smith witness at trial. I. A.O. Smith Should Be Precluded From Admitting Irrelevant, Speculative Testimony At Trial Speculative evidence lacking probative value is inadmissible. People v. Morris, 21 A.D.3d (" 830, (1st Dep't 2005) ("The court properly exercised its discretion in precluding evidence criminal" suggesting that the instant crime might have been committed by an unidentified serial );

7 Ruggiero v. Cardella Trucking Co., 16 A.D.3d 342, 344 (1st Dep't 2005) (speculative evidence identifying a defective cart that might have caused the plaintiff's injury rejected where no competent evidence existed to support the claim). Moreover, it is a long-held truth in this State that "it is not enough to create the suspicion of wrong, nor should a jury be permitted to guess truth." at the In re Massey's Will, 257 N.Y.S. 578, (Sup. Ct., King's County 1932) (internal citation omitted) (emphasis added); see also Tresgallo v. Danica, LLC, 286 A.D.2d 326, 326 (2d 2001) (where party was unable to identify the cause of her injury, jury would have been left to impermissibly speculate as to the cause of the accident). Despite Defendant's best efforts, there is simply no competent evidence linking any H.B. Smith boiler to Plaintiff's asbestos exposure. Indeed, at no point during either volume of Mr. Macaluso's testimony did he ever identify an H.B. Smith boiler, nor was he ambiguous in his identifying A.O. Smith as the manufacturer of heating equipment he regularly dismantled. Despite this fact, Defendant would have the jury guess that Plaintiff could have been exposed to asbestos from an H.B. Smith boiler based on the similarity of its name as well as its general size and shape. Importantly, Defendant will not be calling any witness to corroborate this theory, leaving the jury to speculate that Plaintiff possibly could have worked on H.B. Smith boilers, despite Plaintiff's testimony to the contrary. It is this precise type of speculative leap that New York courts have deemed impermissible. See, e.g., Ruggiero, 16 A.D.3d at 344. Equally as important, Plaintiff testified that for every manufacturer of boiler he worked on (including A.O. Smith), the size was either oval/round or rectangular in shape.3 shape. [Ex. 1 at 256:19-257:1]. A.0 Smith residential boilers, which were oval/round in shape, match Plaintiff's description of the general shape he associated with boilers he worked with. [Ex. 2, Instructions and Guarantee, AOS Smith Residential Type Hydronic Boilers, at 2]. Defendant's contention, that Plaintiff was actually describing the shape of an H.B. Smith boiler evidence to prove this fact - is thus nothing more than impermissible speculation. - despite any actual competent Given Defendant's inability to support its thin theory of alternate causation with any credible evidence actually linking Plaintiff's exposure to H.B. Smith boilers, Defendant's use of H.B. Smith's witness would only cause the jury to speculate as to this company's possibly being a cause of Plaintiff's injury, and must therefore be precluded. II. A.O. Smith's Attempt To Introduce Evidence That Plaintiff Was Possibly Exposed To Asbestos From An H.B. Smith Boiler Is Conjectural, Thus Producing Substantial Prejudice To Plaintiff At no point during Plaintiff's two days of testimony did Defendant ever confront Plaintiff with questions, documents, or pictures that would in any way implicate H.B. Smith as a possible source of his asbestos exposure. Indeed, all questions elicited by Defendant during this deposition specifically addressed A.O. Smith boilers, and Plaintiff's recollection of his work on them over 3 Defendant tellingly failed to include this citation in its application for a commission to subpoena the H.B. Smith witness.

8 the course of a decade. Now that Plaintiff is deceased, however, Defendant would seeks to introduce testimony contradicting Plaintiff's testimony without Plaintiff's having the ability to rebut or in any way address it. Indeed, considering that Plaintiff was unequivocal in his identification of the A.O. Smith boilers he worked on, the only function Defendant's anticipated evidence could possibly have is to confuse the jury, therefore prejudicing Plaintiff. This Court may of course exclude evidence if its probative value is outweighed by the prospect of, inter alia, "undue prejudice to the opposing party, confusing the issues or misleading the jury." People v. Primo, 96 N.Y.2d 351, 355 (2001) (internal citations omitted). As here, where A.O. Smith seeks to introduce the possibility of an alternate exposure by a non-party, evidence "of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to risks." outweigh these countervailing Id at (internal citations omitted). To reach a sufficient level to be considered probative, "the evidence must be of more than "slight value." People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981) (quoting People v. Allweiss, 48 N.Y.2d 40, 47 (1979)). New York courts have denied defendants' attempts to introduce similarly conjectural evidence because of its significant prejudicial effect. As just one example, the plaintiff in Tyre v. Merritt Construction, Inc., 2015 WL *1, *1 (Sup. Ct., Greene County, Apr. 10, 2015), filed a motion in limine seeking to preclude the defendant "from offering into proof that Plaintiff accident." may have smoked marijuana the morning ofher car (emphasis in original). The plaintiff further asserted that the police department made no mention of marijuana, no charges were brought against the plaintiff, and no competent evidence existed to corroborate that defendant's theory. Id The court thus determined that the prejudicial effect of allowing such conjectural evidence outweighed any probative effect it may have had. Id at *4. Furthermore, and significant to the instant matter, since plaintiff's deposition testimony did not support that she was impaired during her car accident, the court remained concerned that allowing the possibility of marijuana use to be introduced "would mislead the jury into looking for an impairment when it is contrary to the record." Id Allowing the instant Defendant to introduce evidence of the possibility of Plaintiff's working on boilers from a similar-sounding manufacturer (H.B. Smith) even though no competent evidence in the record exists to support this theory would produce the same prejudice and possibility of jury confusion that the court was concerned with in Tyre. This evidence must therefore be precluded. CONCLUSION New York law is clear on the standard of admissibility for evidence, regardless of its relevance, when that evidence would only produce jury confusion and prejudice to the opposing party. As such, and since A.O. Smith's evidence at best would only introduce the mere possibility of Plaintifi s work on a different brand of boiler (despite his clear and unequivocal testimony to

9 the contrary), Defendant's proposed evidence's probative value is far outweighed by its potential prejudice to Plaintiff, and should be precluded. Respectfully submitted, ( - ames N. Kramer, Esq. counsel of record Cc: All (via NYCEF)