FILED: NEW YORK COUNTY CLERK 12/09/ :45 PM INDEX NO /2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/09/2016

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1 FILED: NEW YORK COUNTY CLERK 12/09/ :45 PM INDEX NO /2016 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 12/09/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X IN RE: NEW YORK CITY ASBESTOS LITIGATION X LESLIE FOGEL, et al. - against - Plaintiffs, NYCAL I.A.S. Part 50 (Moulton, J) Index No.: /16 AMERICAN INTERNATIONAL IND., et al., Defendants X AFFIRMATION IN SUPPORT OF MOTION TO VA CATE SPECIAL MASTER'S RECOMMENDATION and REMOVE THIS CASE FROM EXTREMIS STATUS CHRISTOPHER S. KOZAK, an attorney duly admitted to practice law before the courts of this State, affirms, under penalties of perjury pursuant to CPLR 2106, that the following statements are true, except for those made upon information and belief, which he believes to be true: 1. I am a member of the law firm of Landman Corsi Ballaine & Ford P.C., attorneys for Whittaker Clark & Daniels ("WCD"), which is a named defendant in the above-captioned action (the "Action"). As counsel for defendant WCD in the Action, and from a review of the firm's file, I am familiar with the facts and circumstances set forth below. 2. Per Sections III (B) and XIV of the NYCAL Case Management Order, WCD respectfully submits this Affirmation in support of its Appeal seeking to vacate an December 5, 2016 Recommendation by the Special Master, and reject Plaintiffs' "letter application" delivered to the Special Master earlier this year requesting that this case be included in the 10/16 In Extremis cluster. 1 of 12

2 3. After conducting initial discovery in this matter, WCD made the within "Nexus Application" on July 22, 2016, objecting to this case remaining in that cluster based on Plaintiffs' failure to demonstrate an exposure to a product known to contain asbestos in NYC. 4. This Appeal presents the issue of whether a plaintiff can maintain a Trial Preference based on the mere allegation of asbestos product presence in NYC even though there has been no evidence that the product existed or that it contained asbestos. 5. Plaintiffs claim that suppliers and manufacturers of talc-containing products caused Leslie Fogel ("Fogel") to develop mesothelioma. Indeed, Plaintiffs have only sued suppliers and manufacturers of talc-containing products. (See Exh. A, Plaintiffs' most recent Amended Complaint, naming only talc-related parties). 6. Despite this, Plaintiffs nevertheless ask the Court to give this case a Trial Preference in NYCAL based on an "ongoing" and incomplete investigation into a possible bystander claim related to an oven, whose manufacturer has not been identified and for which there is no information to determine whether it ever contained asbestos-containing parts or components. Notably also, here, Plaintiffs have not sued a person or entity alleged to be responsible for "the oven." (See id.). BACKGROUND 7. In this Action, Plaintiff Leslie Fogel claims that he developed mesothelioma as a result of his use of cosmetic talcum products. 8. It is undisputed that none of Fogel's claimed used of cosmetic talcum powder occurred in New York City ("NYC"). 9. In his verified answers to interrogatories, Mr. Fogel stated, inter alia: "Plaintiff Leslie believes lie may have been exposed to asbestos on the few occasions he visited Tech-Ohm 2 2 of 12

3 Resistor Corp. located in Astoria, Queens, New York... " (See Exh. J, Plaintiffs' Verified Answers to Standard NYCAL Interrogatories, A.20 (emphasis added).) 10. On May 16 1, 17 th and 1gt11, 2016, Plaintiff Leslie Fogel testified. 11. Among other things, Fogel contends that when he was 7 or 8 years old, he "rarely" visited his father's workplace on a few weekends, and upon doing so crawled underneath an oven used to bake resistors. (See Exh. B, WCD "Nexus Application" citing the testimony at issue). 12. To this date, Plaintiffs have not identified a manufacturer, brand name, or any other information to identify the alleged oven at issue. 13. Despite this glaring omission, and in an attempt to demonstrate alleged asbestos content, Fogel claimed that the oven contained material that looked like material used underneath beakers in his high school class and that it was "common knowledge that asbestos was used in ovens." (See Exh. C, Plaintiff's 8/3/16 Opposition to the "Nexus Application"). 14. Plaintiffs, however, have failed to demonstrate, without speculating, that "the oven" contained an asbestos-containing material to which Fogel could have been exposed, albeit on a "rare" occasion. Plaintiffs have not presented any evidence that the bunson burner screens used in his high school contained asbestos or any evidence related to the "common knowledge" associated with ovens like the one described at Tech-Ohm. 15. Indeed, when asked 6 months ago to point to any information or evidence that could demonstrate whether the oven contained asbestos, Fogel testified that there was no such evidence: Q. Okay. Do you have any evidence or are you aware of any evidence from any source that can demonstrate for us whether asbestos was present anywhere in the shop at Tech Ohm? THE WITNESS: I'm not aware of any v. I 3 3 of 12

4 7 evidence. An oven is an oven, made with 8 asbestos and BY MR. KOZAK: 22 Q. I want to know, without speculating, 23 without guessing, whether or not there's any 24 evidence that you're aware of that can help us 25 understand what was in that shop at any time at Tech Ohm in terms of an oven or an 2 asbestos-related product. 6 THE WITNESS: Other than common 7 knowledge that ovens have asbestos in them, I 8 don't know what else to say. 9 BY MR. KOZAK: 10 Q. Okay. Is there any A. I'm not aware of any studies that were 12 done, no test of the air. I don't know if that 13 answers your question or not. I'm trying to, 14 but I don't understand the question. 15 Q. Is there any person that can tell us 16 what was in or on or around the oven at Tech 17 Ohm? 19 THE WITNESS: Not that I'm aware of. 20 BY MR. KOZAK: 21 Q. Is there any document that can tell us 22 any information about the oven at Tech Ohm? 23 A. Not that I'm aware of. 24 Q. And has any investigation been 25 performed as to the type of oven or what it was made of, what it was made out of, what the 2 component parts were made of, what the component 3 parts were made out of at Tech Ohm? 8 THE WITNESS: Not that I'm aware of. (See Exh. B) (emphasis added). 16. In their Opposition, Plaintiffs only cited one portion of Fogel's alleged NYC exposure testimony, calling it 'unequivocal testimony,' wherein his own counsel asked him if there was "any doubt in his mind" that he was exposed to asbestos at his father's workplace. (See Exh. C at p.2) (referred to below as "are you sure" or sham testimony). Significantly, Plaintiff was not v. I 4 4 of 12

5 asked on what basis there was suddenly "no doubt," nor did he explain then or since then how it was he was suddenly so sure given that he had clearly testified that there was no witness, no document or photo, and no investigation which supported his "oven" contentions. 17. After initially submitting the "Nexus Application" and after Plaintiff opposed the Application, the parties engaged in several replies and sur-replies, which are attached hereto at Exh. D, and briefly summarized as follows: (a) In its August 3, 2016 reply, WCD distinguished the Golden case (discussed infra) because in that case, there was no dispute whether the product used to secure nexus in NYC contained asbestos - the product was identified as Kaylo, and its manufacturer, Owens-Illinois, was a party in the case. (See Exh. E, Golden decision, as well as the last filed Amended Complaint in that matter). WCD argued that the identification of an asbestos-containing product is or should be a prerequisite to the nexus analysis. In that , WCD went on to state that it was "sham testimony" for Plaintiff to respond to "are you sure"-type questions posed by his counsel after he had repeatedly testified that he could not demonstrate that any asbestos-containing material was actually present at his father's workplace - no witness to support him, no document or photo showing an oven, and no investigation by him. As further explanation of this argument, it is generally accepted that sham testimony is the type of testimony which refutes earlier testimony for the purpose of raising an artificial issue of fact, but which testimony is not accompanied by any evidence or explanation to explain why the earlier testimony was mistaken. 1 Here, there was no such explanation or evidence at the 1 Generally, conclusory and self-serving statements are not accepted by courts. See Perez v. Bronx Park South Assoc., 285 A.D.2d 402,404, 728 N.Y.S.2d 33 (1st Dep't 2001) (self-serving Affidavit 5 5 of 12

6 depositions, in Plaintiffs' nexus opposition papers, or during the 6 months since then. (b) In an August 3, 2016 sur-reply, Plaintiff responded that it was "common knowledge" that ovens and screens in school chemistry labs contained asbestos. contrary to prior testimony). For example, a non-movant cannot defeat summary judgment by submitting an Affidavit that creates a feigned fact issue by avoiding the consequences of his prior testimony. See Washington v. N. YC. Bd. o(ed., 95 A.D.3d 739, 740, 945 N.Y.S.2d 87 (1st Dep't 2012) (plaintiff's Affidavit insufficient to raise fact issue where it was used "to avoid the consequences of her prior testimony"); Garcia-Martinez v. City o(new York, 68 A.D.3d 428,429, 891 N.Y.S.2d 21 (1st Dep't 2009) (plaintiff's Affidavit created feigned issue of fact); Pippo v. City o(new York, 43 A.D.3d 303, 304, 842 N.Y.S.2d 367 (1st Dep't 2007) (prior testimony conflicted with plaintiff's Affidavit regarding cause of fall, creating feigned issue of fact); Garcia v. The Jesuits o(fordham. Inc., 6 A.D.3d 163, 166, 774 N.Y.S.2d 503 (1st Dep't 2004) (prior testimony conflicted with plaintiff's Affidavit regarding cause offal!). Self-serving Affidavits (or testimony) that contradict prior sworn testimony are considered by courts to have been tailored to avoid the consequences of earlier testimony and are, therefore, insufficient and disregarded. Lupinsky v. Windham Construction Corp., 293 A.D.2d 317,318, 739 N.Y.S.2d 717, 719 (lstdep't 2002) (selfserving Affidavit offered to contradict deposition testimony should be disregarded); see also Bernadette Joe v. Orbit Industries, 269 A.D.2d 121, 122, 703 N.Y.S.2d 14, 16 (1st Dep't 2000) (self-serving Affidavit opposing the motion could not be relied upon to contradict prior testimony by same person); Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320, 70 I N.Y.S.2d 403,405 (I st Dep't 2000) (Affidavit contradicting prior testimony insufficient); Milton Weinstein Assoc. v. NYNEX Corp., 266 A.D.2d 138, 139, 699 N.Y.S.2d 23, (1st Dep't 1999) (self-serving Affidavits insufficient and compel the conclusion that the party is attempting to avoid the consequences of its earlier unambiguous admissions in the complaint and elsewhere); Kistoo v. City o(new York, 195 A.D.2d 403, 404, 600 N.Y.S.2d 693, 694 (1st Dep't 1993) (trial court improperly relied on plaintiffs self-serving Affidavit which directly contradicted her prior deposition testimony). This Court has disregarded similar self-serving statements in the past. For example, in Szamatulski v. American Art Clay Company, Inc., this Court granted Tishman Liquidating Corp. ("Tishman") summary judgment motion on the ground that Plaintiff had not established that it was strictly liable under Labor Law 200. (See Exh. I, Szamatulski (Index No /11, July 11, 2012). In that case, plaintiff alleged that Tish man was a general contractor at a site where he worked as a pipefitter. Plaintiffs testimony, however, only mentioned Tishman's presence, and did not establish that Tishman directed or controlled his work in any way. Plaintiffs self-serving Affidavit did nothing to clarify the issues. The Court was looking for definitive evidence against Tishman and reasoned that general supervisory authority was insufficient to establish the requisite supervisory control. Plaintiff must demonstrate that the contractor controlled (or had the authority to control) the manner in which the plaintiff performed his/her work, i.e., the injury-producing work. 6 6 of 12

7 However, this often-used "common knowledge" argument is completely unsupported by the Record. Plaintiffs failed to supplement the Record with any reliable evidence demonstrating that an oven, like the one Fogel weakly described, contained asbestos-containing parts. Additionally, Plaintiffs did not provide any evidence to show that bunson burner screens used at Fogel's high school (during the time he attended) commonly contained asbestos, and that the material was similar to some component of this alleged oven. (c) In Plaintiffs August 12, 2016 sur-reply, counsel indicated that "our investigation into... the actual oven is ongoing." (See Exh. D, 8/12/16 by Nick Novack, Esq.). 2 It is WCD's contention that any such "investigation" should have been completed long before applying for a Trial Preference and that admitting the ongoing or incomplete nature of such an investigation should have immediately rendered the earlier Extremis "letter application" void. (d) On August 15, 2016, WCD further supplemented the Record on this Nexus Application upon receipt of Plaintiffs' medical causation expert Report by Dr. Albert Miller, dated July 29, (See Exh. D, 8/15/16 at 11 :52 am by Chris Kozak, Esq., which includes Dr. Miller's Report). Critically, Dr. Miller had reviewed Fogel's deposition testimony from May 2016 and concluded that, "Given that the only exposures to asbestos were to cosmetic talcs... I must conclude... that his mesothelioma is the proximate result of the exposures as described." (Emphasis added). Dr. Miller did not list the speculative oven claim as even a 2 At a Perrin Conference on December 6, 2016, when discussing this case, Plaintiffs' counsel against stated that the investigation was "ongoing." v. I 7 7 of 12

8 possible source of asbestos exposure, let alone as a substantial cause of Fogel's rnesotheliorna. (Id.). (e) On November 4, 2016, in its final reply, WCD noted that Plaintiff still had not come forward with evidence establishing a nexus to NYC. 18. On December 5, 2016, the Special Master denied WCD's "Nexus Application" by stating: This is a cosmetic talc case, in which Mr. Fogel testified that, between the ages of 7 and 8 in the 1950s, he visited Tech-Ohm Resistors, where his father worked in Queens. He was in or around ovens used to bake resisters. There was no specific ID of the ovens, and no testimony as to whether or not they were an asbestos containing product. At this point, there are no "oven defendants" in the case. By contrast, Mr. Fogel's talc exposure (to Cashmere Bouquet, Clubmen, Old Spice, English Leather and Brute) occurred either in Long Island or New Jersey. Defendants have objected to the inclusion of this case in the 10/16 in extremis docket, on both forum and New York nexus grounds. Defendants assert, inter alia, "that it is unfair for Plaintiffs to use that claimed exposure as a basis for gaining a slot in an in extremis cluster, and then dropping that claimed exposure from their case once they have gained an in extremis cluster slot." Relying on Golden v Alliance Laundry Systems, (Heitler, J., Supreme Court NY County, February 5, 2014), available on the NYCAL website, defendants further assert that plaintiff has failed to demonstrate a nexus between his exposure and New York City in order to be placed in an in extremis cluster. Tn fact, defendants describe Mr. Fogel's NYC exposure as "a complete farce". However, I am keeping this case in the in extremis docket, because I believe that plaintiff's visits to Tech-Ohm constitute sufficient contact with NYC. I concede, however, that this case can be distinguished by its facts. In Golden, the few days of NYC contact exposed Mr. Golden to an asbestos containing product, which he identified by name. That product was a defendant. In fact, this may be the first time in this litigation when the alleged NYC exposure does not yield a viable defendant based on that exposure. Nonetheless, until the holding in Golden is distinguished by subsequent case law, I find that Mr. Fogel established a sufficient nexus to NYC for inclusion in the in extremis docket. 8 8 of 12

9 (See Exh. F, Special Master's 12/5/16 Recommendation) (emphasis added). 19. On December 5, 2016, defendant WCD indicated that it would Appeal the December 5, 2016 Recommendation. ARGUMENT 20. The Special Master's Recommendation concluded that there has been no asbestos- containing product identified in NYC. On this basis, WCD asks the Court to find that Plaintiffs have not demonstrated the presence of a product known to have contained asbestos and, thus, cannot establish the requisite nexus to NYC to have permitted Plaintiffs to unilaterally have included this case in the 10/16 extremis cluster 21. This Court has long held that a plaintiff must have "a demonstrated nexus to New York City" in order to be remain in an In Extremis cluster. See Golden v. Alliance Laundry Systems, Index /13 (Sup. Ct. NY Co., Feb. 5, 2014, Heitler, J), quoting, Logan v. A.P. Moller-Maersk, Inc., Index No /12 (Sup. Ct. NY Co., June 17, 2013, Heitler, J.). Moreover, the "demonstrated" exposure must be significant and not speculative, equivocal, or fleeting, at best. (Cf. Exh. G, O'Connor (Justice Heitler affirmed the Special Master's Nexus Recommendation, defining the "quality of exposure" standard as including exposure to "an identifiable asbestos-containing product" and concluding that the exposure at issue was insufficient "de minimus bystander [not direct product use or manipulation] exposure at best for a very short period of time")). 22. Product speculation or use has never been a basis for nexus in NYCAL. (See, f:.&., Exh. H, Recommendations: (a) Lowe (granting defendants' application because plaintiff was "unable to identify any piece of equipment [in the Engine Room] to which he was exposed" and, significantly, "did not know what material was used"); 9 9 of 12

10 (b) Miceli (granting defendants' application based on plaintiffs "I believe" it could have been unidentified pipe covering testimony, which was found to be insufficient to establish a nexus); (c) Cooper (granting defendants' application, in part, because it was too speculative as to what decedent had done to be exposed in NYC); and, (d) LoGiudice (granting defendants' application based on the insufficient quality and quantity of exposure from the possible use of a product during a short visit to NYC)). 23. In this case, the contested issue is whether Fogel crawled under an asbestos- containing product while in NYC. For purposes of this Application and Appeal, WCD has not contested the "while in NYC" part. Instead, and specifically at issue, however, is whether Plaintiff has sufficiently established without equivocating or speculating -- and without sham testimony - that there was an asbestos-containing product present in NYC and that there was sufficient contact to have caused him to be exposed to asbestos. 24. In Golden, Kaylo was identified and its manufacturer, Owens-Illinois, was a named party defendant. At his Deposition, Mr. Golden testified that from April 1946 through May of he was exposed to Kaylo brand asbestos-containing pipe covering while serving in the United States Coast Guard aboard the vessel "Mariposa." Mr. Golden testified to asbestos exposure while in the dry dock at the Brooklyn Navy Yard for three days. Defendants filed a formal objection to inclusion of that case in an extremis cluster. The Defendants contended that Mr. Golden's three days of alleged bystander exposure was not a significant nexus to NYC as to warrant inclusion on the Court's extremis docket. The Special Master agreed and granted defendants' Nexus Application. On Appeal to this Court, plaintiff argued that such exposure, hoever trivial, was a of 12

11 substantial contributing cause of Mr. Golden's mesothelioma. In vacating the Special Master's Recommendation, the Court rejected the "significant" exposure requirement and, instead, held that the NYCAL standard for keeping a case on the extremis docket is whether there is a demonstrated nexus with an exposure to an asbestos product in NYC. The Court held that Golden's testimony of exposure to Kaylo asbestos-containing products for three days in the Brooklyn Navy Yard demonstrated a satisfactory nexus to NYC. Presumably, at the time of a Trial in that matter, there was or could have been an allocation made on the verdict sheet to that alleged exposure, however trivial or slight. Here, by contrast, Plaintiffs' medical expert has clearly stated that the only exposure was to talc products. Moreover, Plaintiffs' have not identified a product or manufacturer to which an "oven" allocation can be made. Thus, the basis of extremis status was an alleged "exposure" that Plaintiffs will seek to keep out of the Courtroom at Trial, and should not, in fairness, be the foundation for a Trial Preference in NYCAL. 25. Moreover, Fogel's nexus testimony is without foundation and entirely speculative. In particular, he claimed that the oven material "looked like" bunson burner screens, which have never been identified by trade name, manufacturer. Plaintiff also has not demonstrated that all or any such screens used at Fogel's high school contained asbestos during the time when he attended. 26. Additionally, and equally without foundation and speculative, the Court should not accept Plaintiffs' "common knowledge" argument. Despite using this frequently used decoy explanation, Plaintiffs have offered no evidence that ovens matching the description provided by Fogel ever contained asbestos material in the location he described. Indeed, Plaintiffs have not proven that all or any such ovens contained material as he described. 27. Because Dr. Miller's Report states that the only causative asbestos exposure was talcum products, and because there is no identified party responsible for the hypothetical oven in v. I of 12

12 this case ( or for purposes of a Bankruptcy Proof of Claim), Plaintiffs' will never put forth evidence there was an oven at Tech-Ohm, that it actually contained asbestos material, and that Fogel was exposed to it. 28. Plaintiffs did not have a sufficient basis to unilaterally include this case in the 10/16 extremis cluster and have failed since then to provide the Court with a demonstrated basis of exposure in NYC to a product known to have contained asbestos. It would be extraordinarily unfair for Plaintiffs to use this alleged exposure to gain a Trial Preference, especially when the product description and alleged asbestos content was so uncertain and speculative. 29. Therefore, the Special Master's Recommendation should be vacated and this case should be removed from its extremis cluster designation, and placed in the next applicable FIFO cluster or, alternatively, where Fogel's alleged talcum use occurred. 30. WCD requests oral argument. WHEREFORE, Defendant WCD respectfully requests that this Court grant its motion, brought by Order to Show Cause, for an Order: (1) vacating the December 5, 2016 Recommendation, (2) removing this case from its in extremis designation, (3) transferred to a suitable venue, such as Nassau County, and ( 4) for such other and further relief as may be just and proper. Dated: December 9, of 12