February 21, Re: Ivette Montanez, et al. v. American Honda Motor Co., et al.; Index No

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1 600 Lexington Avenue 8 th Floor New York, NY P: F: hptylaw.com ATTORNEYS AT LAW Atlanta Austin Charleston Dallas Los Angeles New York St. Louis San Francisco Honorable Cynthia S. Kern, J.S.C. New York Supreme Court, New York County 60 Centre Street, Room 432 New York, New York February 21, 2017 Re: Ivette Montanez, et al. v. American Honda Motor Co., et al.; Index No Dear Justice Kern: We represent Federal-Mogul Asbestos Personal Injury Trust, as Successor to Felt Products Manufacturing Company ( Fel-Pro ) in the Montanez case. Pursuant to the Court s Order of February 2, 2016, Fel-Pro hereby outlines Defendants joint motions in limine 1 that require decision before trial begins. Motion In Limine to Strike Causes of Action Predicated Upon Take-Home Duty to Warn Defendants did not owe any duty to warn Ms. Montanez under New York law. There is no New York law that extends a manufacturer s duty to warn to a household member of a person working with or around the manufacturer s products. Plaintiffs introduced no evidence that Ms. Montanez ever personally encountered a brake, clutch or gasket. The Court should grant judgment in Defendants favor on Plaintiffs failure-to-warn claim because Plaintiffs have failed to establish any basis for imposing on Defendants a duty relating to alleged household exposures. The existence and scope of an alleged tortfeasor s duty is, in the first instance, a legal question for determination by the courts. Sanchez v. State of New York, 99 N.Y.2d 247, 252 (2002). In In re New York City Asbestos Litig. (Holdampf), 5 N.Y.3d 486 (2005) the Court determined that several factors strongly militated against the imposition of a duty from employers of workers who are exposed to asbestos and plaintiffs, like Mrs. Montanez, who allege that their injuries were caused by take home exposure. Noting that duty was derived from the relationship between the defendant and the plaintiff the Court of Appeals noted that there [was] no relationship between the Port Authority and 1 Defendants reserve the right to raise additional motions in limine at a future time, including but not limited to the following: Motion to preclude regulatory & consensus statements, Motion to preclude EPA documents/don t Blow It video, Motion to preclude SP2/CCAR, Motion to preclude plaintiff s expert Dr. Steven Compton. Motion to preclude plaintiff economist expert Kristen Kucsma, Motion to preclude FMSI/testimony of Drislane, Healy & Laycock, Motion to preclude evidence relating to Industrial Health Foundation and Saranac Laboratory, Motion to preclude Froelich testimony/fowler statements, Motion to preclude EA Martin letter, Motion to preclude Castrop/National Safety News article, Motion to preclude evidence pertaining to certain trade association, Motion to preclude case reports/case series, Motion to preclude claims for punitive damages, conspiracy, or other intentional conduct, Motion for an order that a directed finding that any verdict in favor of plaintiffs be reduced to the relative share assigned by the jury to non-party bankrupt tortfeasors, Motion to exclude counsel s personal opinions, beliefs, and knowledge and reference to other asbestos lawsuits, the Asbestos Industry and reference to Plaintiffs as victims or asbestos victims or defendants as Automotive Group.

2 [the plaintiff making a take home exposure claim] Holdampf, 5 N.Y.3d at 495. The Court of Appeals also noted that the employer s liability in Holdampf that the satisfaction of the defendant s duty to warn would be entirely contingent on its employees willingness to comply with and carry out such risk reduction measures, and also the employee s willingness to communicate the risks of exposure to the plaintiff. Id. at 498. Precisely the same is true here. The defendants had no relationship with the plaintiff and were completely dependent on her other relatives to satisfy a duty to warn her. The Holdampf Court also considered the potential for limitless liability if it recognized a new duty to household members, weighing the difficulty in drawing the line at spouses, babysitters, or even an employee of a neighborhood laundry. Id. at 498. The Court stated that the specter of limitless liability is banished only when the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship. Here, there is no relationship between the [defendant] and [the defendant s employee s wife]. Id. Plaintiff is a member of the same class of plaintiffs that the Court of Appeals has held is so broad that to impose a duty on defendants would result in limitless liability. The only difference between this case and Holdampf is the identity of the defendants. As such, the result in this case should be the same as Holdampf and the Court should find that no duty is owed to plaintiff as a matter of law. Motion In Limine to Preclude Chrysotile or Asbestos Causation Testimony Absent Proper Foundation Since Plaintiffs experts fail to satisfy requirements for reliable causation testimony, their opinions should be precluded. Plaintiffs expert medical witnesses claim that Ms. Montanez alleged exposure to Defendants brakes, clutches and gaskets was a substantial factor in causing Ms. Montanez s disease. They have failed to establish, however, that asbestos as a component of a friction product is capable of causing any disease and have also failed to establish that Ms. Montanez was exposed to an amount of asbestos that was capable of causing injury. The Court of Appeals in Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) confirmed that an opinion on causation, should set forth the plaintiff s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). Id. at 448. This test has been reaffirmed by the Court of Appeals on two additional occasions. See, Cornell v. 360 West 51 st Street Realty, LLC, 22 N.Y.3d 762 (2014); Sean R. v. BMW of North America, LLC, 26 N.Y3d 801 (2016). The Parker plaintiff contended that the Benzene component of gasoline caused his AML. With respect to general causation, the Parker Court focused the inquiry on the specific product at issue, holding, Key to this litigation is the relationship, if any, between exposure to gasoline containing benzene as a component and AML. Id. at (emphasis in original). Because plaintiff s experts had failed to address gasoline exposure (as opposed to benzene exposure), the Court held plaintiff s causation evidence insufficient to overcome summary judgment. As to specific causation, the Court noted that experts must provide some quantification of the plaintiff s exposure to the defendant s product. Id.; accord Sean R., 26 N.Y.3d at 809 (2016) ( At a minimum, there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the kind of harm that the plaintiff claims to have suffered. ) (internal quotation marks and ellipsis omitted). Recently, Justice Jaffe applied the Parker standard to hold insufficient, as a matter of law, expert testimony on substantial factor causation that was similar to the opinion plaintiffs experts promote here. In In re New York City Asbestos Litig (Juni), 48 Misc. 3d 460 (N.Y. Sup. Ct. 2015), plaintiff s 2

3 general causation expert relied upon general knowledge that chrysotile causes asbestos. The Court found such testimony insufficient without a showing of the effect of exposure to chrysotile in friction products. Id. at The expert merely claimed that a component of a product can cause injury in its purest form but did not establish what happens when that component is incorporated into a completed product. The Juni plaintiff s specific causation expert testified that the defendant s product was a substantial factor in causing the plaintiff s disease, but did not even minimally quantify Juni s exposures and failed to express Juni s exposure scientifically, such as estimating plaintiff s exposure through mathematical modeling based upon his work history, or comparing his exposures to similar ones reported in studies. Id.at 485. The Juni Court held plaintiff s specific causation expert s opinion that every exposure to asbestos is a substantial factor was legally insufficient, observing that while it may be difficult or impossible to quantify a plaintiff s exposure to a toxin, some quantification is nevertheless necessary under Parker in order to establish specific causation. Id. at 491. As Juni illustrates, Parker, Cornell and Sean R. all require plaintiffs to present evidence specific to automotive friction parts. Evidence concerning asbestos generally or chrysotile is not probative and is not sufficient unless and until a product specific showing has been made that asbestos as a component of a friction part is even capable of causing plaintiff s injuries. Here, plaintiffs experts have not provided a basis for opining that chrysotile fibers in friction product dust can and did cause peritoneal mesothelioma. Additionally, Plaintiffs experts do not provide even some quantification of the exposures to chrysotile, if any, that Ms. Montanez sustained as a result of her brother and husband s alleged work with defendants products. Thus, Plaintiff s experts opinions fail under three precedents of the Court of Appeals including Parker which was correctly applied by this Court in Juni. Similarly, Plaintiffs experts should be precluded from opining that each and every exposure to asbestos is a substantial contributing factor in causing Plaintiff s illness, or from offering any similar opinion. Such opinion is legally and scientifically invalid because it does not meet the threshold of specific causation. As noted above, the Court in Parker required proof of exposure to sufficient levels of a toxin. The each and every exposure theory fails to demonstrate this. Furthermore, the Court in Parker demanded experts use generally accepted methods to establish causation. The each and every exposure theory consciously avoids this analysis. If this Court does not preclude plaintiff s expert from testifying in this regard then this Court should direct an evidentiary hearing to supplement the record in this regard. Motion in Limine to Preclude Testimony Regarding Sarcoidosis The plaintiff s expert, Dr. Carl Brodkin, should be precluded from offering any testimony regarding the diagnosis, treatment, prognosis, and causation as to plaintiff s August 2016 diagnosis of sarcoidosis. In the alternative, an evidentiary hearing should be held to evaluate Dr. Brodkin s methodology and the reliability of his novel opinions on this issue. Dr. Brodkin opines that plaintiff s August 2016 findings are fully consistent with a sarcoid-like reaction to her underlying malignancy (peritoneal mesothelioma). He adds: Notably, sarcoid reactions have also been documented following anti-neoplastic treatment for malignancy, including cisplatin chemotherapy, used to treat Mrs. Montanez s mesothelioma. These opinions are speculative, lack medical and scientific support, and go beyond Dr. Brodkin s field of expertise. 3

4 First, Dr. Brodkin s diagnosis of sarcoid-like reaction is not the diagnosis reached by the plaintiff s treating physicians, who diagnosed sarcoidosis. Dr. Brodkin lacks a basis to contest the sarcoidosis diagnosis, as he never examined plaintiff, and never reviewed her pathology slides or diagnostic films. None of her medical records reflect the diagnosis which Dr. Brodkin reached. Dr. Brodkin s diagnosis is unsupported by a factual predicate, and testimony regarding such diagnosis and opinions regarding it should be precluded. See Cooke v. Bernstein, 45 A.D.2d 497 (1 st Dept. 1974). Dr. Brodkin s opinion does not satisfy the Parker test because he fails to establish that asbestos as a component of friction products can cause sarcoidosis and, if there is general causation, that plaintiff s level of alleged exposure to defendants respective products could cause sarcoidosis. He does not cite any study or peer-reviewed literature showing such a causal link. The study on which he relies for his opinion, Kiess, et al. 2015, at most according to Dr. Brodkin s report, but not defendants experts establishes an association between sarcoidosis (or, in Dr. Brodkin s words, sarcoid-like reaction) and various cancers, which is insufficient to establish a substantial causal relationship between sarcoidosis and peritoneal mesothelioma. As defendants expert oncologist, Dr. Miller, opines: The occurrence of sarcoidosis after the diagnosis and treatment of cancer is now recognized but the exact cause of sarcoidosis remains uncertain. Immune dysregulation, inflammatory responses to the malignancy itself, and the use of immune stimulatory therapy that results in an autoimmune disorder are attractive hypotheses but the exact relationship remains to be determined There are no data or evidence supporting any association between asbestos and sarcoidosis. Dr. Brodkin has not, and cannot, establish general causation, because the notion has not been established by the medical and scientific community. Similarly, absent general causation, he cannot establish specific causation. For the same reasons, Dr Brodkin s opinion regarding sarcoid-like reactions and chemotherapy fails. Dr. Brodkin cites no literature which supports a substantial causal relationship to establish general causation. Dr. Brodkin cites nothing more than the reported occurrence of such reactions generally, and offers no citations to any literature which establishes general causation of sarcoidosis by the chemotherapy agents Cisplatin and Pemetrexed. As Dr. Miller notes, there are no substantive clinical trial data linking Cisplatin and Pemetrexed for mesothelioma to the subsequent development of sarcoidosis. As Dr. Miller opines any circuitous and self-fulfilling argument claiming that Ms. Montanez s sarcoidosis was caused by cisplatin and pemetrexed therapy, in turn required by her diagnosis of malignant peritoneal mesothelioma which in turn was caused by her alleged asbestos exposure is not tenable. As general causation has not been established, Dr. Brodkin s specific causation opinion must also fail. Motion in Limine to Preclude Post-Exposure Evidence It is anticipated that Plaintiff will attempt to introduce state of the art evidence as to each defendant that post-dates Plaintiff s last dates of alleged exposure to that defendant s products. It is respectfully requested that the Court preclude introduction of such evidence during the trial. Post-exposure evidence has no relevance to any issue in this action. In order to establish a defendant s failure to warn, under a negligence theory, Plaintiff must prove that the defendant knew, or should have known, of the potential danger arising from the foreseeable uses of the product against which the warning should be given. Liriano v. Hobart Corp., 92 N.Y.2d 232 (1998). The underlying theory is that an adequate warning can protect a person by advising him in advance of the dangers in the product s use. Power v. Crown Controls Corp., 149 Misc.2d 967 (Sup. Ct. N.Y. County 1990). Accordingly, a duty to warn ceases with the advent of the injury and, as such, a 4

5 defendant s post-injury actual or constructive knowledge of the claimed hazard has no relevance. June v. Laris, 158 Misc.2d 881 (Sup. Ct. Madison County 1993). Post-exposure evidence also cannot be used for impeachment purposes against defendants corporate witnesses. Post-exposure warnings, training materials, and publications do not qualify as prior inconsistent statements within the meaning of CPLR 4514, which provides that a prior inconsistent statement of the witness must have been made in a writing subscribed by him or... made under oath. (Emphasis added). There is no evidence that any of the defendants corporate witnesses subscribed to the warnings, training materials, or other related publications being purportedly offered to impeach their testimony, or that any defendants employee that generated those documents did so with authority to bind the defendant regarding its knowledge about the effects of asbestos dust from its products. In addition, post-injury evidence cannot be used for impeachment purposes as compelled speech pursuant to OSHA s employee training and product warning requirements. See 29 CFR (j) and 29 CFR Finally, post-exposure evidence should be excluded because its probative value, if any, is greatly overweighed by its tendency to unfairly prejudice defendants and confuse the jury. Here, the possibility of undue prejudice to defendants is patent. The issues of what defendants knew or should have known about the claimed hazards of their products prior to Plaintiff s claimed exposure will be central at the trial. If Plaintiff is permitted to introduce the volume of post-exposure evidence that defendants anticipate she will he jury undoubtedly will be misled into thinking that the state of defendants knowledge after the period of alleged exposure has some bearing on these actions, which it does not as a matter of law. Motion in Limine to Preclude Certain Language During Opening Statements It is anticipated that Plaintiffs counsel will use certain language in their opening statements or voir dire that will be highly prejudicial to Defendants, and therefore should not be introduced to the jury. State v. Metz, 241 A.D.2d 192, 198 (1 st Dep t 1998). Defendants therefore move to preclude Plaintiffs counsel from mentioning Defendants insurance companies or policies, statements referencing entities other than Defendants paying damages, speculative statements as to the composition of products at issue, references to countries having banned asbestos, or terms such as moral duty, ethical duty, public safety, right to know, and fair share. Defendants also move to preclude Plaintiffs from suggesting the case value or potential damages, which would violate the Uniform Rules for Trial Courts (22 NYCRR , Appendix E (4)) and CPLR R4016(b). See also Siegel, New York Practice, 4 th Ed Respectfully submitted, Hawkins Parnell Thackston & Young LLP 5 By: Alexander T. Green, Esq. Attorney for Federal Mogul Asbestos Personal Injury Trust On Behalf of All Remaining Defendants 600 Lexington Avenue, 8 th Floor New York, NY 10022