: : : : : : : : : : : : : : : MEMORANDUM OF LAW OF DEFENDANT FISHER CONTROLS INTERNATIONAL LLC IN OPPOSITION TO PLAINTIFF S OMNIBUS MOTION

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE NEW YORK CITY ASBESTOS LITIGATION THIS DOCUMENT RELATES TO GASPAR HERNANDEZ-VEGA Plaintiff, -against- AIR & LIQUID SYSTEMS CORP., et al., Defendants. (NYCAL) INDEX NO /2014 I.A.S. Part 50 (Moulton, P.) MEMORANDUM OF LAW OF DEFENDANT FISHER CONTROLS INTERNATIONAL LLC IN OPPOSITION TO PLAINTIFF S OMNIBUS MOTION Fisher Controls International LLC ( Fisher ) hereby adopts and incorporates by reference any and all non-adverse oppositions filed by co-defendants in this matter, whether or not the codefendants remain at the time of trial. III. OPPOSITION TO PLAINTIFF S MOTION TO PRECLUDE REFERENCES REGARDING PLAINTIFF S EXPOSURE TO ASBESTOS PRODUCTS MANUFACTURED OR SOLD BY COMPANIES THAT ARE BANKRUPT ENTITIES OR ARE OTHERWISE NOT DEFENDANTS AT THE TIME OF TRIAL AND EXCLUDE THE DEFENDANTS NAMED ON THE COMPLAINT, BANKRUPT ENTITIES, OR SETTLED PARTIES FROM BEING LISTED ON THE VERDICT SHEET Plaintiff asks This Court to preclude defendants from introducing any evidence regarding Plaintiff s exposure to products manufactured or sold by companies that are not defendants at the time of trial and/or or not a party to this lawsuit. See Plaintiff s Affirmation at 11. Plaintiff also specifically seeks to preclude defendants from mentioning or alleging that the plaintiff was exposed to asbestos products that were manufactured, marketed, distributed and/or 1 1 of 7

2 sold by any bankrupt entity. See Plaintiff s Affirmation at 15. However this request runs counter to the CPLR and applicable case law. In 1986, as part of a broader tort-reform measure, the New York Legislature enacted CPLR 1601 and substantially modified the traditional rule of joint and several liability, under which tortfeasors were held jointly and severally liable for the entire verdict, regardless of culpability. See Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 556 (1992)(explaining that joint and several liability means that tortfeasors are each responsible for the full amount [of the judgment] regardless of culpability. ). Section 1601 of the CPLR provides minimally negligent joint tortfeasors, those whose liability is found to be fifty percent or less, relief from joint and several liability under limited circumstances. See Morales v. Co. of Nassau, 96 N.Y.2d 218, 224 (2001)(recognizing that Article 16 is the result of a painstaking balance of interests by the Legislature and addresses both the concerns of innocent plaintiffs and low-fault defendants who were consistently paying a disproportionate share of damages awards. ). CPLR 1601(1) states, in relevant part Notwithstanding any other provision of law, when a verdict or decision in an action or claim for personal injury is determined in favor of a claimant in an action involving two or more tortfeasors jointly liable or in a claim against the state and the liability of a defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant for non-economic loss shall not exceed that defendant s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence he or she was unable to obtain jurisdiction over such person in said action (or in a claim against the state, in a court of this state). 2 2 of 7

3 This Court should follow the plain language of the statute and the sound reasoning of Justice Helen E. Freedman, as affirmed by the Appellate Division in In re New York City Asbestos Litigation (Tancredi), 775 N.Y.S.2d 520, 6 A.D.3d 352 (1st Dep t 2004), and rule that a bankrupt, non-party tortfeasor is not beyond the personal jurisdiction merely by virtue of having filed for bankruptcy and therefore allow the jury to consider the fault of the bankrupt, non-party tortfeasors when allocating shares of liability for plaintiffs non-economic damages under Article 16 of the CPLR. V. OPPOSITION TO PLAINTIFF S MOTION TO PRECLUDE DEFENDANTS FROM PRESENTING SPECULATIVE DOSE RECONSTRUCTION TESTIMONY As set forth herein, plaintiff s counsel mischaracterizes Mr. Spencer s report and his conclusions. Mr. Spencer s report is not a dose reconstruction, but rather is a liability and causation report that analyzes evidence, studies, and accepted criteria to determine whether the type of work that the plaintiff described concerning Fisher valves increased his risk for developing mesothelioma. Plaintiff s counsel deliberately misconstrues that issue and focuses instead on a narrow part of Mr. Spencer s overall analysis. Indeed, unlike plaintiffs experts, who render bald and conclusory opinions that all exposures constitute a substantial contributing factor, Mr. Spencer utilized an exposure assessment as part of his methodology. To conclude that Mr. Spencer cannot testify because a portion of his analysis actually assessed exposure and toxicity relative to ambient exposures is nonsensical. In essence, plaintiff s counsel argues in favor of allowing experts in industrial hygiene and/or toxicology to render causation opinions without any reference to levels or dosage of exposure. Additionally, a cursory analysis of Mr. Spencer s report shows that, contrary to plaintiff s assertion, he does not claim to be able to calculate the number or quantity of fibers to which the plaintiff was exposed from Fisher products. Rather, using the plaintiff s testimony regarding 3 3 of 7

4 Fisher and exposure/fiber release testing of packing and gaskets similar to what decedent described, Mr. Spencer concluded that the tasks described in the plaintiff s deposition testimony involving gasket and packet materials associated with Fisher valves would have created airborne asbestos fiber concentration, if any, that would have been well-below historical and contemporary occupational exposure limits. (Spencer Report, Apr. 28, 2015, at p. 18) (emphasis added). To grant plaintiff s motion would render dosage estimates irrelevant to specific causation opinions in asbestos cases; a result that would be in direct conflict with the Court of Appeals decision in Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584 (2006) (holding that [i]t is 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). ); see also Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762 (2014) (reaffirming Parker). Finally, the use of calculations and exposure assessments as part of one s methodology has been accepted in courts throughout the country as a methodical and scientific component of specific causation expert opinions in asbestos cases. Indeed, Mr. Spencer s approach is consistent with the science of industrial hygiene and accepted industry guidelines that recognize that in the absence of actual air sampling data of the specific jobsite at the time of the alleged exposure, the best means to assess exposure levels is through quantitative dose reconstruction. Thus, plaintiff s position that quantitative exposure estimates are, as a matter of law, improper is inconsistent with controlling New York case law on point as well as the accepted standards, practices, and scientific procedures in the field of industrial hygiene. 4 4 of 7

5 VI. OPPOSITION TO PLAINTIFF S MOTION TO PRECLUDE ANY EVIDENCE, TESTIMONY, OR ARGUMENT REGARDING THE SMOKING HISTORY OF THE PLAINTIFF OR HIS FAMILY Plaintiff argues that defendants should be barred from introducing evidence of plaintiff s and plaintiff s family s smoking history for two reasons. First, plaintiff argues that evidence of plaintiff s and plaintiff s family s smoking history should be precluded as prejudicial because smoking does not cause mesothelioma. See Plaintiff s Affirmation at To the extent that the motion is based on an assumption that the defendants will at some point claim that smoking causes mesothelioma, Fisher respectfully submits that the motion should be denied as premature. Plaintiff also blanketly asserts that [c]igarette warnings are irrelevant. See Plaintiff s Affirmation at 30. To the contrary, cigarette warnings are directly related to the plaintiff s propensity to disregard safety warnings, which is at issue in this case. The First Department has unequivocally and repeatedly held that [c]ontrary to plaintiff's argument, in this state, it remains plaintiff's burden to prove that defendant's failure to warn was a proximate cause of his injury and this burden includes adducing proof that the user of a product would have read and heeded a warning had one been given. Sosna v. Am. Home Prods., 298 A.D.2d 158, 158, 748 N.Y.S.2d 548, 549 (1st Dep t 2002)(internal citations omitted)(emphasis added); Mulhall v. Hannafin, 45 A.D.3d 55, 61, 841 N.Y.S.2d 282, 288 (1st Dep t 2007)( Under well settled law, to prove proximate cause, a plaintiff has the obligation to adduce proof that had a warning been provided, she would have read the warning and heeded it. )(internal citations omitted); Reis v. Volvo Cars of N. Am., Inc., 73 A.D.3d 420, 423, 901 N.Y.S.2d 10, 13 (1st Dep t 2010). The evidence that plaintiff is seeking to preclude is evidence that establishes that the plaintiff did not heed the warnings of the cancer-causing potential related to smoking contained 5 5 of 7

6 on a product that he used multiple times per day for thirty-five years. Contrary to plaintiff s assertions, this evidence is relevant to the issue of proximate cause and must be admitted. X. OPPOSITION TO PLAINTIFF S MOTION TO PRECLUDE EVIDENCE, ARGUMENTS, OR INFERENCE THAT ANY PURPORTED NEGLIGENCE BY PLAINTIFF S EMPLOYERS, OR THE CONDITIONS AT ANY OF THE FACILITIES AT WHICH HE WORKED, RESULTED IN HIS INJURY Plaintiff argues that evidence of plaintiff s workplace exposure to asbestos and his employer s negligence are absolutely immaterial and irrelevant to all contested issues of this lawsuit. See Plaintiff s Affirmation at To the contrary, such evidence is material and relevant and exclusion of the evidence would be unfairly prejudicial. In New York, defendants are entitled to dispute causation or the existence of a plaintiff s alleged injuries by presenting alternative, superseding, or intervening explanations for plaintiff s injuries and the symptoms that a plaintiff presents as evidence of her injury. Van Wert v. Randall, 35 Misc. 3d 1201(A), *1 (Sup Ct, Rensselaer Cty 2012), affd, 100 A.D.3d 1079 (3rd Dept 2012). An order barring the introduction of evidence in support of such explanations is facially improper. Id. New York law is clear that a defendant seeking to apportion liability to non-party companies pursuant to Article 16 has the burden of submitting evidence that a non-party s negligence was significant cause of plaintiff s [mesothelioma]. See Plaintiff s Affirmation at 12, 43, citing In re New York City Asbestos Litig. (Marshall/Pride), 28 A.D.3d 255, 256 (1 st Dept 2006) and In re New York City Asbestos Litig. (Rosini), 256 A.D.2d 250, 252 (1st Dept 1998). If plaintiff s motion was granted, Article 16 would be rendered useless. Accordingly, plaintiff s motion must be denied. 6 6 of 7

7 CONCLUSION For the foregoing reasons, Fisher respectfully requests that the Court deny plaintiff s motions in limine. MCELROY, DEUTSCH, MULVANEY & CARPENTER LLP Attorneys for Defendant Fisher Controls International LLC Dated September 7, 2016 By /s/ Nancy McDonald,Esq. Nancy McDonald, Esq. 7 7 of 7