MARY MURPHY-CLAGETT, as Temporary Administrator )

Transcription

1 X IN RE: NEW YORK CITY ASBESTOS LITIGATION â â â X This Document Relates To: MARY MURPHY-CLAGETT, as Temporary Administrator for the Estate of PIETRO MACALUSO, Index No /2015 -against- Plaintiffs-Respondents, A.O.SMITH CORPORATION, et. al., X Defendants, PLAINTIFF'S OPPOSITION TO DEFENDANT BURNHAM'S MOTION TO ADOPT PLAINTIFF EXPERT TESTIMONY Dear Justice Mendez: A. Expert Pulmonologist Opines That Exposure any Chrysotile Asbestos Product Cannot Cause Mesothelioma, Thus Foreclosing Burnham From Claiming That Such Exposures Substantially Contributed To Plaintiff's Disease Though Plaintiff has always embraced the possibility of exposures to other manufacturer's asbestos-containing products, including gaskets and packing, ultimately, it is burden to prove that such exposures substantially contributed to Plaintiff's disease. Rather than meet that burden, however, Burnham instead made the strategic decision to disclaim any such exposure. To that end, Defendant's expert pulmonologist, Dr. Brian Taylor will give very specific opinions regarding what caused Plaintiff's disease. First, Dr. Taylor will opine that Mr. Macaluso's exposure to asbestos to amphibole asbestos from thermal insulation systems contributed to his mesothelioma, or if no other likely source of amphibole asbestos is identified it was a spontaneous mesothelioma. See Exhibit 1 report of Brian Taylor at page 13.

2 In the case of Thomas McGlynn v. Jenkins Brothers, case before Judge Shulman involving the law firm representing Burnham in this matter, the parties had a similar argument. In that case, however, the defendant only pursued a theory that gaskets and packing could not cause disease and not a sweeping claim that 95% of all commercially used asbestos in the country could not cause disease in foreseeable quantities. The defense expert inmcglyyn, Dr. Stanley Fiel concluded that any exposure to gaskets would not have been sufficient to contribute to his disease: I' Q: So as I've described before when I was at the easel board, the exposure Mr. McGlynn may have had from working on the Burnham valves with chrysotile gasket and packing in them [would] not have the sufficient amount of exposure or dose to give him the disease mesothelioma. [McGlynn transcript. at 1319: :3 available upon request] Despite this admission, at the close of Defendant's case Jenkins sought to include all entities named by Plaintiff, including those entities which, like Jenkins, utilized asbestoscontaining gaskets and packing. The Court, however, after hearing multiple rounds of argument on the issue, ultimately correctly ruled that Jenkins' choice to eliminate the possibility that exposure to asbestos in gaskets and packing could have been a medical cause of Mr. McGlynn's injury ultimately foreclosed Defendant from arguing that such exposure did in fact cause the disease in the alternative, for to do so would have required Jenkins to wholly adopt Plaintiff's experts' conclusions while abandoning its own: THE COURT: I do not believe on this record whatever Dr. Moline said helps [Defendant] although if she had said something to help can' their specific causation that may have been a possibility, but I can't reconcile that with the fact that Doctor [Fiel] has made his categorical announcement in the affirmative to allow this kind of alternative theory. [Id. at 1433:6-13].

3 B. The Court Should Bar Burnham From Offering A Contradictory Theory Of Cansation Which Is Only Supported By Plaintiff's Proofs, And Is Unsupported By Its Own Affirmative Position At Trial While Article 16 would normally permit a defendant to attempt to apportion liability where the proofs would so permit, in the instant case, Burnham prevented any such apportionment against defendants utilizing asbestos-containing gaskets and packing by choosing to take the position that s sole causation witness opines that exposure to chrysotile asbestos could not cause mesothelioma under any circumstances. Further, Burnham has claimed throughout the pendency of this trial that the only asbestos Burnham used in connection with its boiler s was chrysotile asbestos. Therefore, in the instant scenario, an alternative jury instruction allowing the jury to consider evidence discounted by own expert would therefore not only be improper, but indeed entirely unsupported by any authority. party' Indeed, New York courts recognize that a party may not adopt wholly adopt another party's expert in lieu of presenting evidence affirmatively itself. Justice Scarpulla made this exact ruling in a case involving a valve manufacturer which similarly attempted to utilize Plaintiff's expert to prove an element of its case: I am not precluding you from bringing in your own expert testimony about what the state of knowledge was at that time. That's the point of everyone getting their own experts. So you cannot convert the expert into your expert. The plaintiff said what he based his knowledge on, he talked in detail about it; you are free to cross-examine and have been cross-examining him about that information. Anything else is beyond the scope. [available upon request Relevant Excerpts of Thibodeau Trial Tr., Feb. 6, 2014 at 336:11-19 (emphasis added]. Burnham flatly states in their late night motion that "If it's good for the plaintiff, it's good for the defendant." What Burnham ignores in its reasoning that that with the submission of

4 testimony of Dr. Taylor, Burnham is expressly stating that "what is good for the plaintiff (chrysotile causation is NOT good for the defendant. Burnham acknowledges its CPLR 1603 for its burden to prove, by a preponderance of the evidence, its equitable share of the total liability. What Burnham refuses to acknowledge is that, in attempting to prove its equitable share under its chosen theory of the case, it necessarily absolved other similar defendants of liability. Burnham will not point to any authority allowing the type of severely eased burden it would have the Court apply. s argument again primarily relies on Gibson, Dunn & Crutcher LLP v. Global Nuclear Services And Supply, LTD., 280 A.D.2d 360 (1st Dep't Importantly, this case in no way addresses whether a party may bring a wholly alternate theory, contradictory to its main theory. Rather, it simply addresses the evidence a plaintiff may use to meet its burden, which can be gleaned from admissions of an opposing party during cross examination. Specifically, the court in that case conducted a traverse hearing to determine whether the defendant was properly served with a summons. Id at 360. The First Department reversed the IAS court's determination that the plaintiff failed to meet its burden of proving that a summons was properly served on the defendant's place of business because the IAS failed to consider the defendant's own testimony, which was favorable to the plaintiff, establishing the location of his place of business as the same where the summons was served. Id While the First Department emphasized that a plaintiff may rely on any "favorable evidence," regardless of source, to meet its burden, the court does not in any way state that a party may, in the alternative, use evidence contrary to its theory of the case. Id at 361. Indeed, considering burden, which, Ci i«i i 6 i b. i lib\ d

5 not chrysotile, caused Plaintiff's disease, or that Mr. Macaluso's disease was spontaneous and not related to asbestos at all there was no other "favorable" evidence from Plaintiff's case to utilize. 1 In the case of Bigelow v. AC&S, Inc., 196 A.D.2d 436 (1st Dep't 1993, an asbestos personal injury case, the Appellate Division reversed a trial court's ruling of directed verdict against a defendant attempting to prove shares of apportionment. Id at 438. The First Department noted that the jury should have been permitted to consider evidence including inter alia, the plaintiff's own answers to interrogatories listing various companies that also contributed to the plaintiff's asbestos exposure but notably, the defendant, Celotex, did not contest its liability, but merely sought to retry the apportionment phase of the trial. Id at 437. This is in stark contrast to the instant case, where Burnham is taking the affirmative position at trial that neither it nor any other defendant utilizing chrysotile asbestos could have caused Plaintiff's disease. This is not an instance where (as in Bigelow Burnham would not permitted to utilize all evidence to support its burden. Burnham has defined its own theory of the case and proceeded accordingly. Plaintiff's contrasting evidence in no way aids theory of its case, and Burnham should not be permitted to launch a fallback theory unsupported by any of its own witnesses or evidence simply because the jury rejected its defense on specific causation. Burnham additionally relies on Lippel v. The City of New York, 281 A.D.2d 327 (1st Dep't 2001, a case addressing whether a plaintiff may call an opposing party's witness in the plaintiff's case in chief when that witness's testimony supports the plaintiffs case. As the Court (and Burnham is aware, it is common practice to call defendants' witnesses at trial, most commonly in 1 Indeed, s causation expert will testify that that exposure to any chrysotile product is LESS likely to cause mesothelioma, due to the difference in potency between chrysotile and other fiber types, s current argument might have some validity since a rational jury could conclude that if one defendant's insulation, gaskets and packing contributed to Plaintiff's disease, then so too did others'. Burnham will not elicit this testimony, however, and instead advanced a theory that no exposure to chrysotile could cause mesothelioma,

6 the form of defendant's corporate representatives. See McDermott v. Manhattan Eye, Ear and (" Throat Hosp., 15 N.Y.2d 20, 26 (1964 ("It has long been recognized in this State that a party in a civil suit may be called as a witness by his adversary and, as a general proposition, questioned as to matters relevant to the issues in dispute.". This allowance is a far cry from attempt to retroactively bootstrap Plaintiff's experts' testimony as an "alternative" to affirmative proposition that chrysotile asbestos could not have caused Mr. Macaluso's mesothelioma. The issue is not whether Plaintiff was on notice of questioning of his experts, it is on the manner of use of these experts' testimonies when they stand in stark contrast to every theory that will be put forth by Burnham in its case in chief. The remaining cases Burnham relies on are similarly inapposite, and in no way stand for the proposition that another party's evidence may be considered to support a theory not O' affirmatively advanced in a party's case in chief. See Keeton v. Cardinal O'Hara High School, 233 A.D.2d 839, 840 (4th Dep't 1996 (When determining whether the plaintiff had met its burden of proving that a defendant had actual or constructive notice that its sidewalk was icy, evidence consistent with this theory presented by defendants may also be considered; Nat'l BankofN Am. V Systems Home Improvement, 69 A.D.2d 557 (2d Dep't 1979 (In a foreclosure action, where the plaintiff had the burden of establishing the fair market value of the property, defendant's expert's testimony supported plaintiff's burden, and thus should have been considered. it' Burnham is nakedly attempting to have it ALL ways. The "if it's good for the Plaintiff, it's good for the defendant" rule and argument only makes sense when the defendant does not expressly try to prove that theories of causation espoused by the Plaintiff are decidedly false. For the defendant to be allowed to later try to turn around and adopt Plaintiff's theory of causation alternative" should their initial defense fail is to invite a long line of "in the arguments not

7 supported by their own. "Throw it all on the wall and see what sticks" is not a fair or viable legal defense, and one not permitted in any efficient and just courtroom. Lastly, as Plaintiff made crystal clear during his direct examination of Dr. Markowitz on March 5, 2018, all causation opinions proffered were specifically to Burnham, Peerless, and A.O. Smith alone. In setting up the causation hypotheticals, plaintiff stated, Now, Doctor, the plaintiff's burden, why I'm calling you, is regarding Mr. Macaluso's exposure to Burnham, A.O. Smith and Peerless boilers; and I am expressly not going to ask you about his exposures to other asbestos-containing products, despite the fact that plaintiff admits he was indeed exposed to other asbestos-containing materials in his life. Okay? (see trial transcript p. 649:11-17 Today, in cross examination, it is anticipated that defendants will endeavor to illicit further causation opinions on other products to meet their article 16 burden. Such questions will be expressly outside the scope of direct examination and should be precluded. Respectfully Submitted, 7 Simmons Hanly Conroy Daniel P. Blouin James Kramer