FILED: NEW YORK COUNTY CLERK 08/29/ :41 AM INDEX NO /2015 NYSCEF DOC. NO. 411 RECEIVED NYSCEF: 08/29/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X SHANYN WOLF, Individually, and as Special : Administrator of the Estate of RANDY C. : SCHWARTZ : : Plaintiff, : : : -against- : : A.O. SMITH WATER PRODUCTS INC., et al., : : Defendants. : X Index No.: /2015 I.A.S. Part 13 Hon. Manuel Mendez MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS OMNIBUS MOTION IN LIMINE {N } 1 of 32

2 PRELIMINARY STATEMENT Defendant the Pecora Corporation ( Pecora ) submits this omnibus motion in limine on behalf of all defendants in this matter. ARGUMENT I. Excluding from trial any written report, oral testimony, or argument of counsel which voices the scientifically unfounded and legally invalid opinion that each and every exposure to asbestos sustained by an individual contributes to cause a later case of asbestos-related disease The Court of Appeals, on three distinct occasions, has clearly laid the burdens borne by plaintiffs, and their experts, as to causation in toxic tort cases. See generally Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006); Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014); Sean R. v. BMW of N. Am., LLC, 26 N.Y.3d 801 (2016). The First Department has affirmed that this burden rests on plaintiffs in asbestos matter. See Matter of New York City Asbestos Litig., 148 A.D.3d 233 (1st Dept. 2017) (hereinafter Juni). Despite the clear state of the law, plaintiffs, and their experts, consistently fail to properly address their burdens in asbestos litigation. Please find below a summary of these Court of Appeals decisions, which address plaintiffs causation burdens, as well as discussion of the treatment of these decisions in the Appellate Divisions and trial courts of this State, specifically as it relates to asbestos litigation. a. Parker v. Mobil Oil Corp. Parker, rendered in 2006, stands as the seminal case in New York concerning plaintiffs causation burden in toxic tort cases. The case involved a plaintiff who alleged that his exposure to benzene-containing gasoline, throughout his career as a gas station attendant, caused him to develop acute myelogenous leukemia (hereinafter AML ). See Parker, 7 N.Y.3d at 442. Plaintiffs introduced two experts the first, an occupational health physician, opined that two {N }1 2 of 32

3 studies were demonstrative of an increased risk for AML in gas station attendants who were exposed to large amounts of benzene over time, but also acknowledged there was [n]o evidence... for a threshold level below which no leukemia occurs. Id. at 444. Despite being unable to quantify Mr. Parker s exposure to benzene in any way whatsoever, the report concluded, to a reasonable degree of medical certainty, that Mr. Parker contracted AML as a result of his occupational exposure to benzene-containing gasoline. Id. The second report, that of a toxicologist, indicated that plaintiff had greater levels of exposure to benzene than workers in refinery studies, but, akin to the occupational physician above, ultimately failed to provide any articulation of Mr. Parker s actual exposure levels to benzene. The central question identified by the Court of Appeals, due to experts inability to express, or in any way meaningfully quantify Mr. Parker s exposure, was whether [the] experts provided a reliable causation opinion without using a dose-response relationship and without quantifying Parker s exposure. Id. at Although the Court acknowledged that establishing causation in toxic tort cases... will be difficult or impossible to quantify by pinpointing an exact numerical value, it is nonetheless well-established that an opinion on causation should set forth a plaintiff s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). Id. at (emphasis added). Accordingly, it was not sufficient to simply demonstrate that benzene caused AML; instead, [k]ey to [the Parker case] is the relationship, if any, between exposure to 1 It should be noted that the Court examined whether a Frye hearing should have been conducted at the trial level, an issue of dispute amongst the parties on appeal. See id. at The court ultimately concluded the a Frye hearing was not conducive to the question at the core of the case at bar: whether [the expert s] provided a reliable causation opinion without using a dose-response relationship and without quantifying Parker s exposure. Id. at 447. Frye questions, conversely, concern whether the scientific techniques [of the expert] when properly performed, generate results accepted as reliable within the scientific community generally. Id., citing People v. Wesley, 83 N.Y.2d 417, 422 (1994). Instead, the focus here moved from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence and whether they establish a foundation for the reception of the evidence at trial. Id., citing Wesley, 83 N.Y.2d at 429. {N }2 3 of 32

4 gasoline-containing benzene as a component and AML. Id. at 449 (emphasis in original). The Court went to great pains to emphasize that it is not always necessary for plaintiff to quantify exposure levels precisely or use the dose-response relationship.... Id. at 448; see also Wright v. Willamette Indus. Inc., 91 F.3d 1105, 1107 (8th Cir. 1996) (noting that [w]e do not require a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person could conclude that a defendant s emission has probably cause a particular plaintiff the kind of harm of which he or she complains of (emphasis added)). In lieu of using the dose-response relationship, which may prove difficult, the Court suggested the use of mathematical modeling by taking a plaintiff s work history into account to estimate exposure to the toxin... [or] comparison to the exposure levels of subjects of other studies... provided that the expert made a specific comparison sufficient to show how the plaintiff s exposure level related to the other subjects. Id. at 449. The Court rejected the opinions of plaintiffs experts, noting that although the experts were undoubtedly qualified, their opinions were primarily only founded upon Parker s deposition testimony, and provided no meaningful quantitative comparison between the benzene exposure of refinery workers, discussed in the studies, and the benzene exposure of Mr. Parker. See id. at 449. The Court made a point to indicate the futility of the experts using vacuous qualifiers in lieu of employing scientific methods and expressions to quantify a plaintiff s exposure to a toxin. For instance, one expert simply noted Mr. Parker was frequently exposed to excessive amounts of gasoline and had extensive exposures... in both liquid and vapor form, but provided absolutely no quantitative methods to express what these amorphous terms actually meant with regard to plaintiffs burdens on causation. Id. Such descriptors, the Court found, cannot be characterized as scientific expression[s] of [a {N }3 4 of 32

5 plaintiff s] exposure level. Id. As neither expert was able to establish a relationship between gasoline exposure and AML (general causation), or meaningfully, and scientifically, establish that Mr. Parker s exposure to benzene-containing gasoline caused his development of AML (specific causation), the Court excluded the opinions of both experts. See id. at b. Cornell v. 360 W. 51st St. Realty, LLC Cornell, decided eight years after Parker, in 2014, further clarified plaintiffs causation burdens and experts intersection with same. The case involved a plaintiff who complained of various injuries purportedly related to mold growing inside of her apartment. See Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, (2014). In opposition to a summary judgment motion, Cornell submitted an affidavit of an occupational physician who concluded, summarily, that Cornell s condition was undeniably caused by exposure to an unusual mixture of atypical microbial contaminants, and was unquestionably exposed to unsanitary conditions. Id. at He further opined that mold by-products may all have adverse effects to humans, and noted the risk and suggestive evidence of associations of asthma, as well as other pulmonary and skin-related illnesses. Id. at 771. He concluded, based on laboratory and diagnostic tests, that Cornell s ailments were caused by moldy, damp conditions in her apartment. See id. at The Court of Appeals found Cornell s expert opinion to be insufficient. See id. at 781. The Court held that the expert s report spoke in terms of risk and linkage and association not causation. Id. at 783. Citing to the federal courts Reference Manual on Scientific Evidence, the Court noted that [a]lthough a causal relationship is one possible explanation for an observed association between an exposure and a disease, an association does not necessarily mean that there is a cause-effect relationship. Id. at 783, quoting Michael D. Green et al., Reference Guide on Epidemiology, Federal Judicial Center Reference Manual on {N }4 5 of 32

6 Scientific Evidence at 566, Federal Judicial Center (3d ed. 2011) (emphasis in original). Cornell s expert relied solely on studies that were demonstrative of an association between a damp and moldy indoor environment and the medical conditions complained of by Cornell, but not the required causation. Id. at 783 (emphasis in original). As the expert failed to establish that the relevant scientific community generally accepts that molds cause these adverse health effects, Cornell failed to raise a triable issue of fact with respect to general causation. Id. (emphasis added). Even if Cornell had established general causation, the Court noted, she nonetheless failed to prove specific causation. Relying heavily on Parker, the holding stressed the importance of some scientific expression that plaintiff was exposed to sufficient levels of the toxin to the cause the illness, the very definition of specific causation. Id. at 784 (emphasis in original) (citing Parker, 7 N.Y.3d at 448). While the Court acknowledged its prior statement that precise quantification or a dose-response relationship or an exact numerical value is not required, they clarified that Parker by no means, though, dispensed with a plaintiff s burden to establish sufficient exposure to a substance to cause the claimed adverse health effect. Id. at 784 (emphasis added). Cornell s expert simply noted that certain quantifications... may be misleading... and that [plaintiff] was unquestionably exposed to unsanitary conditions, which merely, and insufficiently, acknowledged plaintiff s exposure, a resulting illness, and no causal relationship between the two. Id. at c. Sean R. v. BMW of N. Am., LLC In Sean R., decided by the Court of Appeals on February 11, 2016, the plaintiff alleged that his severe mental and physical disabilities were caused by in utero exposure to unleaded gasoline vapor leaked from a defective fuel hose in his mother s BMW. See Sean R. v. BMW of {N }5 6 of 32

7 N. Am., LLC., 26 N.Y.3d 801, 805 (2016). The Court acknowledged its precedent in Parker and Cornell, noting that plaintiffs must meet the following three requirements to establish liability in a toxic tort cases: (1) a plaintiff s exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered (general causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries (specific causation). Id. at 808. Reiterating their prior stance that precise quantification is not necessary, the Court nonetheless stressed that [a]t 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 that kind of harm that the plaintiff claims to have suffered. Id. at 809 (quoting Wright v. Willamette Indus. Inc., 91 F.3d 1105, 1107 (8th Cir. 1996))Error! Bookmark not defined.. While it is sometimes difficult, if not impossible, to quantify a plaintiff s past exposure to a substance, we have not dispensed with the requirement that a causation expert in a toxic tort case show, through generally accepted methodologies, that a plaintiff was exposed to a sufficient amount of a toxin to have caused his injures. Id. at 812 (emphasis added); see also Joseph V. Rodricks, Reference Guide on Exposure Science, in Federal Judicial Center, Reference Manual on Scientific Evidence at 539 (3d Ed. 2011) ( The methodological tools necessary to reconstruct the plaintiff s past exposures are identical to those used to estimate current exposures, but the availability of the data necessary to apply those methods may be limited or, in some cases, nonexistent. ) By contrast, in reviewing plaintiff s experts methods, the Court found that they had worked backwards from the reported symptoms of the plaintiff s mother and grandmother to reach the conclusion that the plaintiff was exposed to a sufficient amount of gasoline vapor to have caused his injuries. See id. at 809. Further, the plaintiff and his experts did not identify any text, scholarly article or scientific study that approved of or applied the inverse approach {N }6 7 of 32

8 [the expert] employed in this case working backwards from reported symptoms to divine an otherwise unknown concentration of gasoline vapor. Id. at 810. The experts reports, which merely support [the] conclusion that there is a dose-relationship between exposure to the chemical constituents of gasoline and symptoms of toxicity seemingly satisfying general causation, the reports did not, by any means, establish the causation specific to plaintiff. Id. (emphasis in the original). As such, the Court held that the expert causation testimony was properly precluded. See id. d. Post-Parker World and the Juni Decision Despite plaintiffs baseless suggestions to the contrary, the general/specific causation rubric laid out by the Court of Appeals in Parker, as clarified by Cornell and Sean R., has been appropriately followed in New York s trial courts and Appellate Divisions, as well as federal courts applying New York law. See, e.g., Juni, 148 A.D.3d 233 (1st Dept. 2017) (finding the Court of Appeals decision in Parker was controlling in asbestos actions, that it is simply not enough for plaintiff to establish that asbestos is linked to mesothelioma the expert must still establish that the plaintiff in question was exposed to sufficient levels of asbestos, specifically from the defendant s product, to cause the disease); Lindkvist v. Travelers Ins., 111 A.D.3d 452 (1st Dep t 2013) (holding expert testimony inadmissible as experts neither established that mold was capable of causing the injury in question, nor did the expert offer a quantified measure of exposure necessary to cause plaintiff s illness); Cleghorne v. City of New York, 99 A.D.3d 443 (1st Dep t 2012) (dismissing complaint where expert merely adopted plaintiff s anecdotal allegations about exposure and failed to quantify levels of exposure, despite citing to six studies, the expert did not compare those exposure levels, nor stated the level of exposure necessary to cause injury); Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63, (2d Dep t 2011) (rejecting {N }7 8 of 32

9 plaintiff s experts as same failed to establish a causal link between therapeutic use of acetaminophen and plaintiff s development of liver cirrhosis); Cubas v. Clifton & Classon Apt. Corp., 82 A.D.3d 695, 696 (2d Dep t 2011) (dismissing plaintiff s case where plaintiff s expert affidavits were merely conclusory failed to utilize objective standards to show that the toxic mold was capable of causing [plaintiff s] injuries, or that [plaintiff s] exposure to toxic mold was the actual cause of the illness); McGrath v. Transitional Servs. Of N.Y. for Long Island, 63 A.D.3d 1121, (2d Dep t 2009) (rejecting plaintiff s expert who merely offered unsubstantiated and speculative opinions that [plaintiff s] medical conditions and symptoms were caused by exposure to construction dust and debris. ); Todman v. Yoshida, 63 A.D.3d 606 (1st Dep t 2009) (finding expert s opinion insufficient where expert neither quantified exposure, nor employed any methods for calculation exposure, and did not compare plaintiff s exposure level with those of study subjects); Holzworth v. Alfa Laval, Inc., 2016 U.S. Dist. LEXIS (S.D.N.Y. Oct. 19, 2016) (dismissing plaintiff s case against Burnham, and citing to Parker and Cornell as controlling, where plaintiff failed to demonstrate that his exposure to asbestos from the Burnham product rose to a level to cause the harm he suffered). The case that has received the most attention in asbestos litigation with regard to causation, perhaps, is the Juni decision, which was recently affirmed by the First Department on February 28, In that case, Mr. Juni, a mesothelioma claimant, alleged exposure to asbestos from Ford friction products (brakes, clutches, gaskets) while working in a garage. See Juni. 148 A.D.3d at 235. At the trial level, Justice Barbara Jaffe ultimately set aside a verdict rendered against Ford, after a lengthy and thorough analysis of the history of causation thresholds in New York. See generally Matter of New York City Asbestos Litig., 48 Misc. 3d 460 (Sup. Ct. N.Y. Cnty April 13, 2015). {N }8 9 of 32

10 While the First Department and Justice Jaffe acknowledged that mesothelioma was inextricably linked with asbestos exposure, that mesothelioma is caused only by exposure to asbestos does not dispose of the issue of whether defendant s product caused the mesothelioma... which depends on the sufficiency of the exposure, if any, to asbestos in the defendant s product and whether that exposure is capable of causing mesothelioma. See generally Matter of New York City Asbestos Litig., 48 Misc. 3d at 481. That is, as to general causation, the issue was not whether asbestos, itself, caused mesothelioma, but whether the asbestos in the friction products at issue were capable of causing mesothelioma. Juni. 148 A.D. at ; see also Parker v. Mobil Corp., 7 N.Y.3d 434, (2006) (holding that the inquiry did not focus on whether benzene caused AML, but whether the benzene-containing gasoline could cause AML). While plaintiffs experts discussed studies where friction products were at issue, they were not analogous to Mr. Juni, as those studies involved factory workers who worked with raw amphibole asbestos, not the chrysotile-containing products at issue. See id. at 254, Matter of New York City Asbestos Litig., 48 Misc 3d. at 482. The one study which did focus on garage workers only acknowledged an association, not a scientific expression of causation, between mesothelioma and friction products. Matter of New York City Asbestos Litig., 48 Misc 3d. at As the Cornell Court explicitly held, [a]lthough a causal relationship is one possible explanation for an observed association between an exposure and a disease, an association does not necessarily mean that there is a cause-effect relationship. Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 783 (2014) (emphasis in original). Plaintiffs experts, therefore, failed to cite to any authority supportive of the conclusion that friction products, similar to those at issue, could cause mesothelioma thus failing to establish general causation. Matter od New York City Asbestos Litig., 48 Misc. 3d at {N }9 10 of 32

11 The First Department likewise found that at a minimum, there must be evidence from which a factfinder can conclude that the plaintiff was exposed to levels of the agent that are known to cause the kind of harm that the plaintiff claims to have suffered. Therefore, the fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant's products to have caused his disease. Juni, 148 A.D.3d at 236. Plaintiff's experts failed to meet this standard because they effectively testified only in terms of an increased risk and association between asbestos and mesothelioma, but failed to either quantify the decedent's exposure levels or otherwise provide any scientific expression of his exposure level with respect to Ford's products. Id. at Justice Jaffe likewise found that plaintiffs failed to establish their burden with regard to specific causation (whether Mr. Juni s exposure to the friction products in question could have caused his mesothelioma). While Parker, Cornell, and Sean R. clearly hold that an exact quantitative analysis or dose-response relationship is not necessary, the Court of Appeals has, time and again, held that this does not dispense of plaintiff s burden to provide some articulation of causation. See Parker, 7. N.Y.3d at 449 (suggesting other means like mathematical modeling by taking a plaintiff s work history into account to estimate exposure to the toxin... [or] comparison to the exposure levels of subjects of other studies... provided that the expert made a specific comparison sufficient to show how the plaintiff s exposure level related to the other subjects.); Cornell, 22 N.Y.3d at ; Sean R. v. BMW of N. Am., LLC., 26 N.Y.3d 801, (2016). However, plaintiffs expert conceded that she could not provide any scientific expression of Mr. Juni s exposure, admitted that she did not know whether the dust contained in the friction products at issue contained asbestos, and ultimately was unable to conclude that Mr. {N }10 11 of 32

12 Juni s work with these products would have caused him to be exposed to asbestos in a manner sufficient to cause his disease. See Juni, 48 Misc. 3d at 485. Instead, plaintiffs expert relied on Mr. Juni s anecdotal testimony in which he testified that he was regularly exposed to asbestoscontaining friction products. Id. at 486. Employing descriptors like regularly, however, have been dismissed as non-scientific expressions, insufficient to establish specific causation; similar to the Parker s court s dismissal of the expert s use of words like frequent, excessive, and extensive, as amorphous, unfounded, and not at all connected to causation. See Parker, 7 N.Y.3d at 449. Due to plaintiffs inability to satisfy their causation burden, the verdict was set aside. We anticipate Plaintiffs will seek to rely on the First Department s decision in Lustenring, which was notably rendered before Parker and its progeny to somehow circumvent the clear thresholds concerning general and specific causation as set forth by the Court of Appeals. In fact, the First Department distinguished Lustenring and limited it to its specific facts in Juni. Juni 148 A.D. at 239 ( [O]ur decisions in Lustenring and other asbestos cases do not justify allowing a judgment in an asbestos case to stand based solely on a bare conclusion that because the plaintiff worked with the defendant's asbestos-containing products, those products were a contributing cause of the plaintiff's mesothelioma) The Lustenring case, a scant one paragraph decision, upheld a jury verdict where there was evidence that both plaintiffs worked all day for long periods in clouds of dust raised specifically by the manipulation and crushing of defendant s packing and gaskets, which were made with asbestos. Id. at 70. Without any analysis, the First Department found that [v]alid expert testimony indicated that such dust, raised from asbestos products and not just from industrial air in general, necessarily contains enough asbestos to cause mesothelioma. Id. In {N }11 12 of 32

13 Juni, the experts were not able to provide any scientific quantification of the Juni s potential exposure to asbestos from working with friction products; and therefore, the experts testimony was insufficient to establish causation. e. Plaintiffs Experts Failed to Articulate General or Specific Causation in this Case In light of the aforementioned settled law, it becomes thoroughly apparent that Plaintiffs disclosed experts, Mr. Garza and Drs. Zhang and Moline, woefully fail to meet the causation standards set forth in Parker, Cornell, Sean R., and Juni. While it is true that precise quantification of exposure is not necessary, the expert reports do not make any sort of meaningful attempt to provide any other methods to establish exposure levels generally, and certainly not specific to Defendant s products, despite the explicit mandate by the Court of Appeals. See Parker, 7 N.Y.3d at 450 ( Plaintiff s experts were unable to identify a single epidemiologic study finding an increase risk of AML as a result of exposure to gasoline ). These conclusory reports are not remotely probative of whether the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause illness (specific causation). Parker, 7 N.Y.3d at 448. The reports, instead, read as a cautionary tale in all things the Court of Appeals warned against. For instance, Dr. Zhang s report indicates that Mr. Schwartz had a history of significant level of asbestos exposure and Mr. Schwartz s mesothelioma was related to asbestos exposure and the cumulative exposure of each asbestos-containing product significantly contributed to the development of his malignant mesothelioma. In Juni, the First Department refused to adopt Plaintiffs' theory of cumulative exposure to support the verdict as reliance on the theory of cumulative exposure is irreconcilable with the rule requiring at least some quantification or means of assessing the amount, duration, and frequency of exposure to {N }12 13 of 32

14 determine whether exposure was sufficient to be found a contributing cause of the disease. Juni 148 A.D.3d at 239. Dr. Moline similarly opines that Mr. Schwartz s mesothelioma was caused by asbestos exposure without any attempt to quantify the amount of asbestos Mr. Schwartz was exposed to or the difference in causation between peritoneal and pleural mesotheliomas. Not only do Plaintiff s medical experts fail to even attempt to scientifically express Mr. Schwartz s exposure to asbestos, their reliance material that his exposure was sufficient to cause his peritoneal mesothelioma is based only on anecdotal evidence contained in Mr. Schwartz s deposition testimony. The Parker Court rejected plaintiffs expert for this very reason: Dr. Goldstein s general, subjective and conclusory assertion based on Parker s deposition testimony that Parker had far more exposure to benzene than did the refinery workers in the epidemiological studies is plainly insufficient to establish causation. Id.; see also Cleghorne v. City of New York, 99 A.D.3d 443, (1st Dep t 2012) (rejecting plaintiffs expert as he based his opinion solely on anecdotal allegations of plaintiff s uncorroborated affidavit... that the premises were replete with rodents... and characterized Cleghorne s exposure as highlevel. ). Simply put, the expert reports in this matter contain no manifestation of the skills that deem them experts and do not rely, or analogize, to studies, reports, or medical literature to substantiate their reports. As such, Plaintiff s experts general, each and every exposure opinions are insufficient to establish general or specific causation and must be precluded. II. To require Parker/Frye hearings prior to admission of expert testimony In Parker v. Mobil Oil Corp., the Court of Appeals recognized that while there was no particular novel methodology at issue requiring a Frye hearing on the determination of its reliability, the inquiry was more akin to whether there is an appropriate foundation for the {N }13 14 of 32

15 experts opinions in the first place. 7 N.Y.3d 434, 447 (2006). The Frye inquiry is separate and distinct from the admissibility question applied to all evidence whether there is a proper foundation to determine whether the accepted methods were appropriately employed in a particular case. Id. Here, we request that this Court require a Frye/Parker hearing to assess the foundation of Plaintiffs experts opinions and determine whether accepted methods were appropriately employed before allowing them to testify before the jury. III. Precluding admission into evidence or publication to the jury of any and all evidence or testimony of an alleged ban on the use of asbestos in certain products Any and all evidence of an alleged asbestos ban on the use of asbestos should be precluded from evidence or publication to the jury. Any evidence of a proposed ban does not cite any scientific research showing a causal link between asbestos exposure and human mesothelioma. Moreover, even a cursory review of any alleged attempt at a ban makes it clear that the ban was based on a regulatory risk-benefit analysis that is irrelevant to the jury s causation determination. Admission of any evidence concerning a proposed ban into evidence will only serve to mislead and confuse the jury, which may be inclined to simply defer to an alleged conclusion of a regulatory agency. IV. Precluding trial reference to Decedent as a victim or an asbestos victim Any such conclusory terms are unfairly prejudicial to Defendants, and Plaintiff must be precluded from using such terms in the presence of the jury at trial. Where the use of unfair or prejudicial language can be foreseen, it properly is prohibited in limine, thus avoiding a problematic exercise in attempting to un-ring the bell. See, e.g., In re Related Asbestos Cases, 543 F. Supp. 1152, 1159 (N.D. Cal. 1982). {N }14 15 of 32

16 It does not matter if the terms or labels are expected to be used by Plaintiff, by Plaintiff s counsel, or by one of Plaintiff s expert witnesses. See, e.g., Beck v. Wings Field, Inc., 122 F.2d 114, 117 (3d Cir. 1941) ( It is quite as necessary to protect a party against the improper remarks made to a jury by a witness as it is against such remarks when uttered by counsel ). We therefore respectfully requests that Plaintiff, his counsel, and his witnesses be precluded from using the term asbestos victim or any form or derivation thereof at trial. V. Excluding the trial testimony of Plaintiff s state-of-the-art experts The Court must bar the testimony of Plaintiff s state of the art experts, including but not limited to, Dr. Barry Castleman, Dr. Gerald Markowitz, and Dr. David Rosner, all of whom are unqualified to testify as experts. We expect these individuals to testify regarding state of the art issues as they have done in the past. In this litigation, Plaintiff has continuously asserted that these individuals are experts in state of the art issues; however, these individuals can best be characterized as librarians, as their work is merely reading and regurgitating documents. These individuals have no independent education, training, or experience regarding state of the art issues, but rather base their opinions on literature, reports, studies and doctors prepared by others. As such, any lay witness would be just as capable of reviewing the materials reviewed by these doctors and rendering their own opinion. Specifically, Dr. Castleman s testimony has been repeatedly excluded or limited in Texas, California, Oklahoma, Alabama and Washington, upon the realization of his inability to interpret and authenticate records. In reliance on the Federal Rules of Evidence, 720, the Northern District of California held we are not persuaded that Castleman, as a lay person, possesses the expertise necessary to read complex, technical medical articles and discern which portions of the articles would best summarize the authors conclusions. See, e.g., In Re {N }15 16 of 32

17 Related Asbestos Cases, 543 F.Supp (N.D. Cal. 1982). We similarly expect Dr. Markowitz and Dr. Rosner to merely base their opinions on the review of records and reports prepared by others. As such, like Dr. Castleman, they do not possess the expertise to read complex, technical medical articles and discern which articles would best summarize the authors conclusions. As such, their testimony should be precluded. Plaintiff s state-of-the art witnesses will attempt to offer broad-spectrum testimony regarding the hazards of asbestos in general, dating back to the late 19 th century. We anticipate that the scientific and medical case studies and reports cited by Plaintiff s state-ofthe-art witnesses will have no relevance to this case. These witnesses will likely point to early research on asbestos-related disease which focuses on asbestosis occurring with highlevel exposures to millers and miners of raw asbestos. These studies and reports provide the jury with no relevant information whatsoever about what might have been known or knowable about the risks to end- users like Plaintiff, whose claims relate to products or equipment alleged to have contained asbestos as an ingredient or part of a component. Such irrelevant testimony would delude and mislead the jury regarding state-of-the art knowledge with respect to the specific products and equipment at issue in this case. VI. Precluding trial reference to topics related to payment of a potential judgment; Evidence, discussion of, or reference to defendants ability to pay a judgment is inadmissible because it is unduly prejudicial and highly inflammatory. Adams v. Acker, 394 N.Y.S.2d 8, 10 (1st Dept. 1977); Nicholas v. Island Industrial Park, Inc., 361 N.Y.S.2d 39, 41 (2nd Dept. 1974). Furthermore, statements regarding any settlement demands, offers or negotiations between the parties are inadmissible as to admissions of liability or the value of {N }16 17 of 32

18 an admitted liability. Quillen v. Bd. of Educ., 115 N.Y.S.2d 122, 126 (Sup. Ct. N.Y. Cnty. 1952). Further, references to the refusal of either party to enter into a stipulation prior to trial are inadmissible. See People v. Hills, 532 N.Y.S.2d 269, (2d Dep t 1988). A defendant s financial condition has no rational bearing on issues of liability, and any introduction of such evidence carries the obvious, unavoidable, and completely unnecessary danger that it will ignite the jury s passions and prejudices. Placing evidence of a defendant s finances before the jury violates their constitutional due process rights. In defining the constitutional standards required to review punitive damage awards, the United States Supreme Court identified three guideposts for judging the reasonableness of an award, and the propriety of the process that produced it: (1) the degree of reprehensibility of the defendant s conduct; (2) the ratio of the award to the actual harm inflicted on the plaintiff; and (3) a comparison with the civil and criminal penalties imposed for comparable misconduct. BMW of North America, Inc. v. Gore, 517 U.S. 559, (1996). As the Supreme Court confirmed in State Farm, none of the BMW v. Gore guideposts considers the defendant s wealth. In State Farm, the Court noted that the defendant s assets had little to do with the actual harm sustained by the [plaintiffs], and holding that [t]he wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award. State Farm, 538 U.S. at 427. A defendant s assets or wealth bear no relation to the award s reasonableness or proportionality to the harm. Id. Arguments based on wealth or assets merely seek to defend a departure from well-established constraints on punitive damages. Id.; see also, Zazu Designs v. L Oreal S.A., 979 F.2d 499, 508 (7th Cir. 1992) (finding that a defendant s financial condition is completely unrelated to the victim s injury or the size of the award needed to cause corporate managers to obey the law ); Pivot Point Int l, Inc. v. {N }17 18 of 32

19 Charlene Prods., Inc., 932 F. Supp. 220, 223 (N.D. Ill. 1996) ( [E]ven when considering punitive damages based on state law, the Supreme Court did not treat the defendant s wealth as relevant. ). VII. Motion to preclude lay witness testimony regarding product composition; The general rule... is[] that witnesses must be confined to the communication of facts, and not opinions or conclusions which they may have formed from the facts, whether known to themselves, or derived from the testimony of others. Morehouse v. Matthews, 2 N.Y. 514, (N.Y. 1849). The lay opinion rule requires the ordinary lay witness to confine his testimony to the facts, and to exclude his conclusions or opinions. People v. Sanchez, 492 N.Y.S.2d 683, 684 (N.Y. Sup. Ct. 1985). The rule is founded on the premise that, since it is the sole province of the jury to draw inferences from facts, admission of opinion testimony would usurp the jury s fact finding function. Id. The exception to the rule only exists whenever the facts are such that they cannot be described so as to enable persons to form proper conclusions regarding them. Id. VIII. Requiring the disclosure of all settlements We seek to require Plaintiffs to disclose certain information regarding settlements reached in this action. Specifically, we move for an order that Plaintiff s counsel be required to disclose to all parties, prior to the beginning of trial, the identities of all defendants who have reached settlements with Plaintiff. We further move for an order that all settlements reached after the initial disclosure described above be disclosed within twenty-four hours after settlement occurs. Such information would facilitate further settlement in that it would place all parties on an equal footing in evaluating the risks of trial. {N }18 19 of 32

20 IX. Prohibiting the use of the terms Asbestos Industry or Member of the Asbestos Industry in the presence of the jury We hereby move the Court in limine for an order prohibiting any party or attorney from making any direct or indirect reference, through witnesses or exhibits, to terms such as asbestos industry or member of the asbestos industry and from referring to any defendant as an asbestos company or member of the asbestos industry in the presence of the jury. During the course of litigation involving asbestos products Plaintiffs have repeatedly used the terms asbestos industry and member of the asbestos industry. The terms asbestos industry and member of the asbestos industry are particularly misleading and the use of said terms is unfairly prejudicial because it erroneously suggest to the jury the existence of a group and the likelihood of group behavior. X. To preclude any of the Plaintiff s witnesses from relying on case reports as a basis for testimony on the issue of causation or notice It is well settled that opinion evidence must be based on facts in the record or personally known to the witness. Two limited exceptions to this rule are that an expert may rely on out-of-court material if it is the kind accepted in the profession as reliable in forming a professional opinion, or if it comes from a witness subject to full cross-examination on the trial. Hambusch v. New York City Transit Authority, 63 N.Y.2d 723 (1984); Borden v. Brady, 92 A.D.2d 983 (3rd Dept. 1983); see also Gant v. Novello, 302 A.D.2d 690, 695 (3d Dep't 2003) (statements in medical books, even if considered authoritative, are not admissible in evidence as proof of the facts or opinions contained therein). Case reports or groups of case reports are insufficient proof of causation. We submit that because case reports and groups of case reports that do not constitute proper epidemiological studies are inadequate to prove causation, it follows that they are also inadequate to prove notice of causation. The necessary {N }19 20 of 32

21 predicate, a proven causal connection between asbestos and the Decedent s disease, is absent in a case report. Consequently, we submit that Plaintiff s experts should not be permitted to testify that case reports or studies appearing in medical literature prove causation or constitute constructive notice of a causal connection between asbestos and Plaintiff s disease XI. To preclude Plaintiff from submitting evidence of any defendant s membership in any trade association in an effort to impute that trade association s knowledge to that defendant The Court should preclude Plaintiff from making reference to or presenting testimony with respect to the minutes of general meetings and committee meetings or any other records of any trade organization or association and documentary evidence thereof should be precluded. Such documents and testimony are irrelevant, because there is no proof that the defendant in question was present at these meetings or that the defendant received any such materials. No rule of evidence permits Plaintiff to impute to defendants the knowledge of other members of a trade organization; such evidence is unduly prejudicial. Such materials include the writings and prior statements of witnesses who are not available for cross-examination and thus constitute inadmissible hearsay. See Rotolo v. Digital Equip., 150 F.3d 223 (2d Cir. 1998). Plaintiff cannot meet the burden of admissibility under New York law and, therefore, materials or information relating to trade associations should be precluded. XII. To exclude non-party witnesses from the courtroom We requests that all non-party witnesses be excluded from the courtroom during the testimony of other witnesses. This is a complex case, which will necessarily involve numerous scientific and causation issues. There is a risk that, without this order, some witnesses testimony may influence the testimony of others, threatening the integrity and independence of {N }20 21 of 32

22 the witnesses testimony. See Capitol Cab Corp. v. Anderson, 85 N.Y.S.2d 767, 769 (Sup. Ct., N.Y. Cnty. 1949) (holding that the purpose of sequestering witnesses is to prevent one prospective witness from being taught by hearing another s testimony. ) XIII. To preclude a charge of recklessness We anticipate that Plaintiff will attempt to introduce evidence indicating that some defendants knew that asbestos could cause diseases before it became public knowledge. However, there is absolutely no evidence that defendants recklessly disregarded the Decedent s safety in the sale of any products. Recklessness is established where the actor has intentionally done an act of an unreasonable character in disregard of a known and obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome. In the Matter of New York City Asbestos Litigation, 89 N.Y.2d at (1997). Applying that standard here, the evidence is insufficient to support a finding of reckless disregard for the decedent s safety. XIV. To preclude Plaintiff from submitting any and all evidence related to punitive damages Plaintiff s counsel must be precluded from arguing that the jury should send a message, punish, teach defendants a lesson, or suggest in any manner that a jury should consider punitive action against defendants, since such arguments would amount to an improper request for punitive damages. Pursuant to the governing NYCAL Case Management Order, Plaintiffs are not entitled to pursue punitive damages in these cases. XV. To preclude the utterance of disparaging or prejudicial references {N }21 22 of 32

23 The Court must bar parties from referencing or making disparaging remarks including use of the terms murderer, criminals, liars, frauds, cheats, or any inference defendants manufactured or generated evidence, for the reason that said terms and allegations have been held to be improper and prejudicial, and appeals to the passions and sympathies of the jury. Caraballo v. City of New York, 86 A.D.2d 580 (1st Dep t 1982). XVI. Permitting the use of prior transcripts and interrogatories with regard to Article 16 shares We seek to offer answers to interrogatories and corporate depositions taken in other asbestos cases of companies who are settled or never sued due to bankruptcy, in order to prove our Article 16 case. We contend that these discovery materials are admissible at trial. In addition, many defendants answers to interrogatories and corporate representative transcripts are identified in Plaintiff s pretrial disclosure. Accordingly, they would be admissible at trial. Bigelow v. AC&S, Inc., 196 A.D.2d 436 (1st Dep t. 1993) (Harry Brayne deposition admissible since it was referred to in plaintiff s answers to interrogatories). XVII. Excluding post-exposure evidence Any evidence post-dating Decedent s alleged exposure to asbestos is irrelevant to prove matters properly in issue for this matter. See In re: Eighth Judicial District Asbestos Litigation, 152 Misc. 2d 338, 576 N.Y.S.2d 757 (Sup. Ct. Erie Cnty. 1991) (precluding the use of government regulations promulgated after the last date of plaintiff s alleged exposure to asbestos.) One of the primary issues that will be litigated in this case is whether any defendants knew or should have known that the products used at the work sites at issue posed a hazard to persons such as Mr. Schwartz. It is well held, however, that a party can be charged with no more knowledge than that which exists at the time a product is manufactured See, e.g., {N }22 23 of 32

24 Carroll v. CBS Corp., 2015 N.Y. Misc. LEXIS 1131, at *4 (Sup. Ct. N.Y. Cnty Mar. 23, 2015) (noting that plaintiffs must prove that a contractor knew or should have known that asbestos was dangerous in order to impute liability); see also Donuk v. Sears, Roebuck and Co., 15 Misc. 3d 1142(A), 841 N.Y.S.2d 819, n.2 (N.Y. Sup. Ct., Kings Cnty 2007) (recognizing that state of the art materials must pre-date the design and manufacturing stages, otherwise they cannot be considered in a design defect claim), Rainbow v. Albert Elia Building Co., Inc., 79 A.D.2d 287, 293 (4th Dep t 1981) (concluding that, because design defect cases are conceptually analogous to negligence cases, post-accident tests and findings are only admissible if they relate back to the technology of the industry at the time of manufacture); Bolm v. Triumph Corp., 71 A.D.2d 429, (4th Dep t 1979) (holding that trial court erred by receiving post-accident studies and tests because plaintiffs failed to establish that the studies and tests were within the state of the art at the time of manufacture). Any evidence, whatsoever, as to what defendants knew or should have known about the hazards of asbestos subsequent to the last date of testified-to exposure from any product manufactured by defendants must be precluded. XVIII. Precluding the admission of testimony and documents of all defendant products and/or equipment not at issue in this matter It is axiomatic that only relevant evidence is admissible. Evidence is relevant if it has any tendency in reason to prove the existence of any material fact. People v. Wilder, 93 N.Y.2d 352, 356, (1999); see also American Motorists Ins. Co. v. Schindler Elevator Corp., 291 A.D.2d 467, (2nd Dep t 2002). Evidence is properly excluded when it has significant potential to unduly prejudice the defendant and when it is not centrally relevant to issues in substantial dispute. Caster v. IncredaMeal, Inc., 238 A.D.2d 917, (4th Dep t 1997). Even {N }23 24 of 32

25 where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that its admission will unfairly prejudice the other side or mislead the jury. People v. Scarola, 71 N.Y.2d 769, 777 (1988); see also People v. Davis, 43 N.Y.2d 17, 27,(1977) (finding that probative value was outweighed by dangers that the main issue would be obscured by prolongation of the trial and by possibility of undue prejudice). We anticipate that Plaintiff will attempt to admit proposed exhibits that purport to be advertisements, catalogs, manuals, memoranda, and bulletins relating to products and/or equipment not at issue in this matter. Plaintiff has no foundation for many of these documents, save the fact that they bear the trade names of the defendants. The mere fact that these exhibits reference products and/or equipment made by the defendants is not an automatic basis for its admission. To be admissible, the proper foundation must be laid to demonstrate authenticity of the documents, and then their relevance to this particular case must be demonstrated. The Court must view the substance of these exhibits in light of the facts of this particular case. There are repeated bases for exclusion of these exhibits, each of which standing alone demonstrates how they simply do not have any relevance to the facts before the Court, and instead serve to confuse the issues and mislead the jury. XIX. To preclude expert testimony regarding the asbestos content or composition of products and materials without proper background, expertise, and foundation Before the testimony of an expert witness can be received in evidence, the party seeking to offer that evidence has the burden of demonstrating the qualifications that make the witness an expert. Matter of R.M. Children, 165 Misc. 2d 441, 444, 627 N.Y.S.2d 869, 872 (Fam. Ct. 1995) (citing Meiselman v. Crown Heights Hospital, Inc., 285 N.Y. 389 (1941)). A witness may {N }24 25 of 32

26 be qualified as an expert based on study, experience or observation. Meiselman, 285 N.Y. at 398. No precise rule has been formulated and applied as to the manner in which such skill and experienced must be acquired. Id. Instead, long observation and actual experience, even without study of the subject qualify a witness as an expert in that subject. Id. Likewise, proper foundation must be laid in order for such evidence to be admissible. See Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 447 (2006). Plaintiff intends to rely upon experts who are not qualified as industrial hygienists, and who have no expertise in the use and function of the materials at issue here. Despite this, it is anticipated that such experts will attempt to testify as to the necessity of using asbestoscontaining equipment in conjunction with a particular function, without having the applicable expertise from knowledge, education or observation to do so. Witnesses without industrial hygiene expertise (hereinafter Non-IH Experts ) have neither the information nor the expertise necessary to draw such a conclusion. Plaintiff should be precluded from introducing testimony from any Non-IH Experts. New York adopts the Frye test of admissibility, which asks whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally. People v. Wesley, 83 N.Y.2d 417, 454 (1994) (citing Frye v. United States, 293 F (D.C. Ct. App. 1923)). Frye holds that while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Parker, 7 N.Y.3d at (quoting Frye, 293 F. at 1014). Where the proponent of the expert testimony fails to show that the expert s theory is generally accepted within the relevant scientific community, the expert s opinion is {N }25 26 of 32