FILED: NEW YORK COUNTY CLERK 01/13/ :34 PM INDEX NO /2014 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 01/13/2017

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1 FILED: NEW YORK COUNTY CLERK 01/13/ :34 PM INDEX NO /2014 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 01/13/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X JOANNE CORRAZA, as Administratrix for the Estate of GEORGE COONEY, Plaintiffs, (NYCAL) INDEX NO.: /14 I.A.S. Part 1 Hon. Martin Shulman -against- AMCHEM PRODUCTS, INC., et al., Defendants X MEMORANDUM OF LAW IN SUPPORT OF CATERPILLAR INC. S POST-TRIAL MOTION HOLWELL SHUSTER & GOLDBERG James M. McGuire 750 Seventh Avenue, 26th Floor New York, NY Telephone: (646) MARKS, O NEILL, O BRIEN DOHERTY & KELLY, P.C. James M. Skelly, Esq. 530 Saw Mill River Road Elmsford, New York Telephone: (914) Facsimile: (914) Attorneys for Defendant CATERPILLAR INC. January 12, of 35

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 ARGUMENT... 1 CATERPILLAR IS ENTITLED TO JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE DR. ZHANG S OPINION WAS INSUFFICIENT AS A MATTER OF LAW TO ESTABLISH SPECIFIC CAUSATION... 1 CATERPILLAR IS ENTITLED TO JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE PLAINTIFF SUED THE WRONG ENTITY... 8 THE JURY VERDICT SHOULD BE SET ASIDE AND A NEW TRIAL ORDERED BECAUSE THE COURT ERRONEOUSLY DENIED CATERPILLAR S APPLICATION PURSUANT TO CPLR IV. PLAINTIFF S COUNSEL S REPREHENSIBLE AND EGREGIOUS STATEMENTS DURING SUMMATION REQUIRE A NEW TRIAL V. THE AWARD OF DAMAGES DEVIATES MATERIALLY FROM WHAT WOULD BE REASONABLE COMPENSATION CONCLUSION i 2 of 35

3 TABLE OF AUTHORITIES Cases Berkowitz v. Marriot Corp. 163 A.D.2d 52 (1st Dep t 1990)... 19, 20, 21, 22, 23, 24, 25 Bigelow v. Acands, Inc. 196 A.D.2d 436, ) (1st Dep t 1993) Bova v. Caterpillar, Inc. 205 A.D.2d 624, 626 (2nd Dep t 2003) Cleghorne v. City of New York 99 A.D.3d 443, 447 (1st Dep t 2012)... 2, 3, 4, 6 Cornell v. 360 W. 51st St. Realty, LLC 22 N.Y.3d 762, 784 (2014)... 2, 6 Farulla v. Happy Care Ambulette Inc. 125 A.D.3d 529, 530 (1st Dep t 2015) Finerty v. Abex Corp. 27 N.Y.n3d 236, 241 (2016)... 9, 10 Fletcher v. Atex, Inc. 68 F.3d 1451, 1463 (2nd Cir. 1995)... 9, 10 Fraser v Townhouse Corp. 57 A.D.3d 416, 419 (1st Dep t 2008)... 6 Hackshaw v. ABB, Inc. 143 A.D.3d 485 (1st Dep t 2016) In re New York City Asbestos Litig. (Dummitt) 121 A.D.3d 230 (1st Dep t 2014), aff'd 2016 N.Y. LEXIS 1762; 2016 N.Y. Slip. Op (June 28, 2016)... 26, 27 In re New York City Asbestos Litig. (Konstantin) 121 A.D.3d 230 (1st Dep t 2014), aff'd 2016 N.Y. LEXIS 1762; 2016 N.Y. Slip. Op (June 28, 2016)... 26, 27 In re New York City Asbestos Litigation (Peraica) 2013 WL , at n.14 (N.Y. Sup. Ct. 2013), modified, Peraica v. A.O. Smith, 143 A.D.3d 448, 451 (1st Dep t 2016)... 27, 28 ii 3 of 35

4 Martins v. Little 40 Worth Assocs., Inc. 72 A.D.3d 483, 484 (1st Dep t 2010)... 4 McGee v. Bells Supermarket 177 A.D.2d 975, 975 (4th Dep t 1991)... 10, 11 McHale v. Anthony 70 A.D.3d 463, 466 (1st Dep t 200)... 10, 11 New York City Asbestos Litigation (Hackshaw/Sweberg) 2015 WL (N.Y. Sup. Ct. 2015)... 28, 29 Parker v. Mobil Oil Corp. 7 N.Y.3d 434, 434 (2006)... 2, 3, 4, 5, 6 Penn v. Amchem 85 A.D.3d 475 (1st Dep t 2011)... 25, 26 Regina v. Broadway-Bronx Motel Co. 23 A.D.3d 255, 255 (1st Dep t 2005) Sargeant v. New York Infirmary Beekman Downtown Hosp. 222 A.D.2d 228, 228 (1st Dep t 1995) Sean R. v. BMW of N. Am. 26 N.Y.3d 801, 808 (2016)... 2, 4 Sweberg v. ABB, Inc. 143 A.D.3d 483 (1st Dep t 2016) Rules CPLR , 15, 18, 19 CPLR 4404(a)... 1 Treatises Restatement (Second) of Torts 400 (1965)... 9 iii 4 of 35

5 Other Authorities Federal Judicial Center, Reference Manual on Scientific Evidence 614 (3d Ed. 2011)... 5 Gary E. Marchant, Genetic Data in Toxic Tort Litigation, 45(2) The Brief (2016) iv 5 of 35

6 PRELIMINARY STATEMENT Defendant Caterpillar Inc. ( Caterpillar or Caterpillar Inc. ) 1 respectfully submits this memorandum of law in support of its motion pursuant to CPLR 4404(a) for an order setting aside the verdict and: directing that judgment be entered in its favor or, in the alternative, vacating the verdict and directing a new trial or, in the alternative, remitting the award of damage for past pain and suffering. Decedent, George Cooney, initiated this action on or about February 12, 2014, alleging that he developed lung cancer as a result of his exposure to asbestos-containing products manufactured, supplied, or distributed by numerous defendants. Affirmation of James M. Skelly, dated January 12, 2017 ( Skelly Aff. ), Exhibit A, Complaint dated February 12, Following Mr. Cooney s death on September 18, 2014, his daughter, Joanne Corazza, filed an Amended Complaint as administatrix of his estate on March 4, 2015, adding a claim for wrongful death. Skelly Aff., Exhibit B, Second Amended Verified Complaint. In the interest of brevity, the relevant facts are not summarized here; instead, they are set forth to the extent necessary in the Argument. ARGUMENT I. CATERPILLAR IS ENTITLED TO JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE DR. ZHANG S OPINION WAS INSUFFICIENT AS A MATTER OF LAW TO ESTABLISH SPECIFIC CAUSATION Plaintiff s specific-causation expert, Dr. David Zhang, M.D., failed to establish specific causation. He acknowledged that Mr. Cooney smoked two-and-a-half packs of cigarettes per day for fifty-two years and that Mr. Cooney was never diagnosed with asbestosis. TT1328:22-26; 1370: At bottom, however, the gist of his opinion was that a lot of dust containing 1 Defendant sometimes refers to itself as Caterpillar for case of exposition. As discussed below, Caterpillar Inc. is not synonymous with certain other entities, including but not limited to Caterpillar Industrial Inc. 1 6 of 35

7 asbestos that Mr. Cooney inhaled over an unspecified time period collectively caused Mr. Cooney s lung cancer. TT1344:10; TT1314:26. Specific causation requires proof that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries. Sean R. v. BMW of N. Am., 26 N.Y.3d 801, 808 (2016). To prove it, a plaintiff s expert must 1) quantify the plaintiff s exposure or 2) scientifically assess the exposure that was directly caused by the defendant; and thereafter 3) prove that the amount of exposure caused by the defendant was enough to cause the illness at issue. This showing is the plaintiff s burden, and has been affirmed by the Court of Appeals three times in the last decade. Sean R., 26 N.Y.3d at 808; Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014); Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 434 (2006). This burden was not met as a matter of law. A. Conclusory and Generalized Testimony that Mr. Cooney was Exposed to an Ostensibly Sufficient Level of Asbestos to Cause his Lung Cancer Does not Establish Causation, Especially since No Effort to Quantify Exposure was Made. Dr. Zhang s testimony failed to establish specific causation because he made no effort to support his findings or follow-up on his beliefs even when he had the opportunity to do so. The Court of Appeals has consistently held that an expert who makes no effort to quantify her exposure lacks any foundation for establishing specific causation. Cornell, 22 N.Y.3d at 784; see also Parker, 7 N.Y.3d at 449 ( scientific expression of plaintiff s exposure level is required). Of course, meaningless and vague quantifying adjective[s] are also insufficient to establish specific causation as a matter of law. Cleghorne v. City of New York, 99 A.D.3d 443, 447 (1st Dep t 2012). Because Dr. Zhang s opinion was premised only on Mr. Cooney s testimony that there was a lot of dust containing asbestos was generated when he performed certain brake, 2 7 of 35

8 clutch, and head gasket work, he offered no legitimate theory for establishing specific causation in Mr. Cooney s case. Dr. Zhang and plaintiff s counsel could have quantified Mr. Cooney s potential exposure. Techniques such as the use of epigenetic markers can be used to quantify past exposures to toxic substances, 2 and Dr. Zhang conceded in his testimony that quantification of asbestos in dust is possible. See TT1382:17-21 (acknowledging that quantification is possible but stating that s not my specialty ). But Dr. Zhang never even sought to meet with Mr. Cooney to assess his case, or conduct an actual tissue analysis of Mr. Cooney s lungs. TT1352:21-24; TT1380:1-10; see also TT1365:25-TT1366:2 ( Q: Again, you have done no study of the levels of asbestos that would be airborne while changing a gasket, correct? A: I have never done study,... ). Nor did Dr. Zhang seek details about Caterpillar forklifts that could have informed his testimony. Following Parker, the First Department unanimously held that specific causation cannot be established where plaintiffs offer[ed] no quantification whatsoever. Cleghorne, 99 A.D.3d at 448. Here, too, plaintiff offered no quantification whatsoever. Instead of quantification, Dr. Zhang relied only on Mr. Cooney s testimony that he had been exposed to a lot of dust: My opinion is that because the brake contained asbestos that, you know, it generates a lot of dust. And when he blows the dust with compressed air, that generates a lot of visible dust,... So this process, he can inhale a lot of asbestos into his lung and that can lead to the development of lung cancer. TT1344:4-11. Of course, the requirement to quantify or scientifically assess applies without regard to an expert s professional experience. See Parker, 7 N.Y.3d at 449 (testimony rejected even though expert was undoubtedly highly 2 Gary E. Marchant, Genetic Data in Toxic Tort Litigation, 45(2) The Brief (2016) (emphasis added), of 35

9 qualified ). Therefore, this generalized and conclusory statement relying on a lot of dust is insufficient to establish specific causation as a matter of law. Parker is instructive and dispositive. That case involved a plaintiff who alleged that his acute myelogeneous leukemia ( AML ) was caused by nearly two decades of exposure to benzene contained within the gasoline he handled as a station attendant. Id. at 442. Parker s expert testified that specific causation was established by Parker s frequent[] and extensive exposure to excessive amounts of gasoline. Id. at 449. However, the Court of Appeals rejected this opinion as inadequate, holding that general, subjective and conclusory assertion[s]... [are] plainly insufficient to establish causation. Id. Dr. Zhang s testimony fares no better than the expert in Parker. The Parker expert s use of vague and sweeping terms such as frequent[] and extensive is as conclusory as Dr. Zhang s statement that Mr. Cooney was exposed to a lot of dust. See also Cleghorne, 99 A.D.3d at 447 (excluding testimony characterizing exposure as high-level ); Martins v. Little 40 Worth Assocs., Inc., 72 A.D.3d 483, 484 (1st Dep t 2010) (calculations based on assumptions not supported by the record are insufficient). As the Court of Appeals held, this is plainly insufficient. Parker 7 N.Y.3d at 442. B. Neither Plaintiff s Counsel or Dr. Zhang Established any other Scientific Assessment of Mr. Cooney s Exposure. Failure to measure Mr. Cooney s alleged asbestos exposure by any method of scientific assessment further dooms the specific causation testimony in this case. Although an expert need not pinpoint exposure with complete precision, Parker, 7 N.Y.3d at 449, the expert must still establish specific causation by measuring a plaintiff s exposure through an alternative assessment that is accepted as reliable within the scientific community generally. Id. at 446 (internal quotation marks omitted); see also Sean R., 26 N.Y.3d at 810 (holding that expert methodology 4 9 of 35

10 should be rejected unless it generate[s] results accepted as reliable within the scientific community generally ). The Court enumerated possible alternatives to quantification, such as mathematical modeling or a specific comparison of scientific studies that accounts for similarities and differences between the plaintiff and the subjects in those studies. Parker, 7 N.Y.3d at 449 (emphasis added). But no alternative scientific assessment was offered at trial. Without some type of scientific assessment or quantification of Mr. Cooney s exposure to asbestos that was directly caused by Caterpillar, there can be no showing of specific causation. Furthermore, one study was mentioned at trial (the Selikoff Study ). Yet even this study failed to provide any foundation for finding specific causation since, as Dr. Zhang conceded, the subjects of that study worked in a different profession, worked with different asbestos materials, and experienced different risk rates of asbestos-related diseases than Mr. Cooney. TT1362:5-22; Parker, 7 N.Y.3d at 449; see also Federal Judicial Center, Reference Manual on Scientific Evidence 614 (3d Ed. 2011) ( [I]f an individual has been differentially exposed to other risk factors from those in a study, the results of the study will not provide an accurate basis for the probability of causation for the individual. ). According to Dr. Zhang, the risk of exposure to asbestos is alone enough to conclude that no meaningful difference exists among automobile mechanics (Mr. Cooney s profession) and other professions that have a higher risk of asbestos exposure. See TT1367:4-8 ( Q: Sir, would automobile mechanics be doing a lot more brake jobs on a particular day than a heavy equipment mechanic? A: I can t tell.... If you work in this environment, you certainly have the risk to be exposed. That s the basis I use. (emphasis added)). This approach to causation is plainly impermissible under Parker and its progeny, which hold that speak[ing] in terms of risk and linkage and association... depart[s] from the generally accepted methodology for evaluating 5 10 of 35

11 epidemiologic evidence when determining whether exposure to an agent causes a harmful effect or disease. Cornell, 22 N.Y.3d at 783. If Dr. Zhang s testimony were to pass muster under the law, any expert could establish specific causation by merely relying on the risk that exposure might have caused the illness alleged. Effectually, it would eliminate any need to show specific causation, and therefore did not provide a lawful basis for establishing specific causation against Caterpillar. C. Plaintiff s Expert Failed to Prove that the Amount of Exposure caused by Caterpillar s products was enough to cause Mr. Cooney s Illness. To prove specific causation under New York law, plaintiff was required to show that was sufficiently exposed to a toxin due to Caterpillar products such that this exposure caused the lung cancer that Mr. Cooney developed more than 30 years after working with those products. Thus, the [k]ey to this litigation is the relationship, if any, between exposure to [Caterpillar s products] containing asbestos as a component and [Plaintiff s cancer]. Parker, 7 N.Y.3d at See also Fraser v Townhouse Corp., 57 A.D.3d 416, 419 (1st Dep t 2008) ( Without evidence that they were exposed to a level... sufficient to cause their alleged injuries (specific causation), plaintiffs cannot prevail on their personal injury claims (citing Parker, 7 N.Y.3d at 448)). Proving this relationship requires 1) establishing what level of exposure would be capable of causing Mr. Cooney s lung cancer, and 2) showing that there is a relationship between Mr. Cooney s contact with visible dust due to his work with Caterpillar products and Mr. Cooney s eventual lung cancer diagnosis. On the first prong, Dr. Zhang failed to specify what level of dust or asbestos exposure would have caused Mr. Cooney s lung cancer. Cf. Cleghorne, 99 A.D.3d at 448 (rejecting expert testimony for this reason). Although he acknowledged that specific causation requires that Mr. Cooney had experienced above background exposure levels of asbestos from Caterpillar 6 11 of 35

12 products (TT1355:8), Dr. Zhang never identified what that level is. Consequently, there was no basis for the jury to establish a relationship between Caterpillar s products and Mr. Cooney s lung cancer. On the second prong, Dr. Zhang never established a specific connection between Mr. Cooney s lung cancer and the products of Caterpillar rather than the forklifts produced by the other manufacturers. See TT1352:25- TT1354:9 (acknowledging Mr. Cooney s repeated testimony that he worked with Caterpillar, Hyster, Clark, and Komatsu forklifts). Instead, Dr. Zhang summarized his testimony as follows: My opinion is Mr. Cooney has lung cancer, and because he has history of exposure of the asbestos and that have a certain latency about 30 years exposure from the initial working in that environment, and therefore the asbestos, whatever, during that period of time ten years, 15 years exposure, that all collectively leads him to developing lung cancer. Of course smoking contribute to that too. TT1314:21-TT1315:2. This opinion fails to establish a relationship between Caterpillar forklifts and Mr. Cooney s lung cancer. First, Dr. Zhang s opinion is an assessment of what collectively led to Mr. Cooney s illness it relies on no facts showing that Caterpillar forklifts specifically caused Mr. Cooney s lung cancer apart from other manufacturers products. And second, the testimony conflates the argument that asbestos causes lung cancer with the argument that visible dust causes lung cancer. Dr. Zhang acknowledged that he had no knowledge of what was contained in the dust that Mr. Cooney alleged to have inhaled (TT1356:3-5). Indeed, he testified that he did not need to quantify 15 fibers or 100 fibers, TT1355:20-21, [v]isible dust, that is the evidence [of] exposure. TT1355: Consequently, his opinion rests on the proposition that the dust containing some unknowable amount of asbestos itself caused Mr. Cooney s cancer. There is no 7 12 of 35

13 foundation for making this assessment, and it is impossible to find specific causation on these grounds. Accordingly, Caterpillar is entitled to judgment notwithstanding the verdict. II. CATERPILLAR IS ENTITLED TO JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE PLAINTIFF SUED THE WRONG ENTITY During trial, defendant Caterpillar Inc. ( Caterpillar or Caterpillar Inc. ) moved for a directed verdict on the ground that it had not manufactured, distributed or sold any of the forklifts or asbestos-containing parts thereof to which Mr. Cooney was exposed. That is, Caterpillar contended that plaintiff had sued the wrong entity. Caterpillar so moved after the statute of limitations had expired, on or about September 4, 2016, several days before jury selection began. 3 Plaintiff s Memorandum of Law in Opposition to Defendant Caterpillar s Motion for Directed Verdict at 2. The following facts relating to the entities affiliated with Caterpillar that did manufacture, distribute, or sell forklifts or asbestos-containing parts were not contested: In 1965, Caterpillar Tractor Co. ( Tractor ) formed a new, wholly-owned subsidiary, Caterpillar of Ohio, Inc. ( Caterpillar Ohio ). TT1211:4-12. In September of 1965, Caterpillar Ohio acquired Towmotor Corporation ( Towmotor Corp. ). TT1211: After the acquisition, Towmotor Corp. remained a separate corporation until 1985, when Caterpillar Industrial Inc. ( Caterpillar Industrial ) was formed. TT1211: :2. At that time, Towmotor was renamed Caterpillar Industrial Inc. TT1212:3-6. From 1965 through 1978, Towmotor Corp. was the exclusive manufacturer of forklifts that bore the name Towmotor, Caterpillar, CAT or a Caterpillar logo. TT1204: :6. During 3 As set forth in the accompanying Skelly Afirmation, Mr. Skelly was aware early in this action that plaintiff had failed to sue the right entity, Caterpillar Industrial Inc., but he did not realize until after trial had commenced that the statute of limitations had expired. Skelly Aff. at of 35

14 this period, Towmotor Corp. was responsible for supplying replacement parts for all such Caterpillar/Towmotor forklifts. TT1205: :19. Similarly, Towmotor Corp. had its own network of dealerships that it maintained following its acquisition by Caterpillar Ohio in These dealerships supplied replacement parts for Caterpillar/Towmotor forklifts. TT1205: See also 1213: Mr. Cooney was not exposed to asbestos after TT601: The Court denied the motion, ruling that the circumstances here were kind of a hybrid between equitable estoppel and the apparent manufacture[r] doctrine. TT1747: Caterpillar respectfully submits that the Court erred. We show below in section A that the apparent manufacturer doctrine does not apply and in section B that Caterpillar was not estopped from seeking dismissal on the ground that plaintiff had sued the wrong entity. A As the Second Court ruled, after surveying New York law, no New York court has ever extended liability under the [apparent manufacturer] doctrine to anyone other than sellers of products manufactured by third parties. Fletcher v. Atex, Inc., 68 F.3d 1451, 1463 (2nd Cir. 1995). As the Court noted, this doctrine has been recognized by the Restatement (Second) of Torts 400 (1965). Id. at The Court expressly agreed with the defendant s argument that you cannot apply [the doctrine] because [the defendant] was neither the seller nor the distributor of the allegedly defective keyboards. Id. Similarly, the New York Court of Appeals has recently and unequivocally ruled that the doctrine could not apply to a company, Ford USA, because Ford UK, not Ford USA, manufactured and distributed the allegedly defective tractor and vehicle parts. Finerty v. Abex Corp., 27 N.Y.3d 236, 241 (2016); id. ( Ford USA was not a party within the distribution chain, 4 Plaintiff did not dispute that a wholly owned subsidiary [of Caterpillar] manufactured the forklifts. TT1734: of 35

15 nor can it be said that it actually placed the parts into the stream of commerce. ). And [a]lthough plaintiff submitted evidence tending to show that Ford USA provided guidance to Ford UK in the design of certain tractor components, absent any evidence that Ford USA was in fact a manufacturer or seller of those [asbestos-containing] components, Ford USA may not be held liable under a strict products liability theory. Id. at Finally, the Court also held that absent any indication that Ford USA was in the distribution chain, it is of no moment that Ford USA exercised control over its trademark. Id. at 242. Here, the apparent manufacturer doctrine does not apply for the same reasons it did not apply in Fletcher and Finerty: Caterpillar (i.e., defendant Caterpillar Inc.) did not manufacture, sell or distribute the Caterpillar/Towmotor forklifts or the asbestos-containing replacement parts (i.e., brakes, clutches and head gaskets) that exposed Mr. Cooney to asbestos. B Caterpillar (i.e., Caterpillar Inc.) is not equitably estoppel from seeking dismissal on the ground that plaintiff sued the wrong entity. In the first place, it was not duty bound to inform plaintiff[] that it had not sued a proper party. Regina v. Broadway-Bronx Motel Co., 23 A.D.3d 255, 255 (1st Dep t 2005). Nor is the fact that Caterpillar did not deny that it manufactured, sold or distributed the Caterpillar/Towmotor forklifts and asbestos-containing parts comparable to a purposeful, strategic silence intended to mislead [plaintiff] as to the proper defendant. Farulla v. Happy Care Ambulette Inc., 125 A.D.3d 529, 530 (1st Dep t 2015); McGee v. Bells Supermarket, 177 A.D.2d 975, 975 (4th Dep t 1991) (same); see also McHale v. Anthony, 70 A.D.3d 463, 466 (1st Dep t 200) ( Neither counsel s failure to point out the misnomer, nor the failure to definitively deny ownership of the offending truck in the initial answer, is comparable to a of 35

16 purposeful, strategic silence intended to mislead plaintiffs as to the proper defendant, which would justify using a theory of estoppel to hold it liable for a truck it did not own. ). Similarly, [n]either the failure to serve the complaint properly nor the served defendant s failure to point out the misnomer is the fault of [the proper defendant]. Id. at 465. Here, the failure of plaintiff to sue Caterpillar is much like the plaintiffs failure in McHale, which gr[ew] primarily out of the plaintiffs decision to serve [the wrong defendant] without reference to the readily available information as to its correct location. Id. at 466. Here, information that showed that the Caterpillar/Towmotor forklifts and asbestos-containing parts were not manufactured, sold or distributed by Caterpillar also was readily available. TT1732:8-1734; 1741: Indeed, the record establishes both that the law firm representing plaintiff, prior to the expiration of the statute of limitations, was in possession of a deposition transcript from another case in which Mr. Niemeier set forth that information and that plaintiff s counsel used this transcript when he examined Mr. Niemeier at trial. TT1732:8-1733:4; 1741: :26. Finally, there is no evidence that Caterpillar made any misrepresentation that induced plaintiff s error. McGee, 177 A.D.2d at 975 (rejecting estoppel argument and observing that [t]here is no showing that the [proper defendant] made any misrepresentation which induced the [plaintiff s mistake], and [it and its insurers] were under no obligation to inform plaintiff of the proper defendant. ). The contention by plaintiff s counsel that Mr. Niemeier had testified at trial that Caterpillar Inc. had sold the forklifts, TT1734: :4, is pure wordplay and is belied by 5 Furthermore, a decision of the Second Department states that [a]lthough the name Caterpillar was on the forklift, the record indicates that Caterpillar Industrial Inc., not Caterpillar, Inc., manufactured and distributed the forklift. Bova v. Caterpillar, Inc., 205 A.D.2d 624, 626 (2nd Dep t 2003). In granting summary judgment dismissing the complaint against Caterpillar, Inc., the Court immediately went on to state that [l]iability cannot be imposed on a party that was outside the chain of manufacturing, selling or distributing a product. Id of 35

17 the context of this ostensible admission, TT668:10-669:26, and the express testimony Mr. Niemeier gave on this very subject. TT1204: :26; TT1211:6-1213:19. Accordingly, Caterpillar is entitled to judgment notwithstanding the verdict. III. THE JURY VERDICT SHOULD BE SET ASIDE AND A NEW TRIAL ORDERED BECAUSE THE COURT ERRONEOUSLY DENIED CATERPILLAR S APPLICATION PURSUANT TO CPLR 1601 For the purpose of allocating liability pursuant to CPLR 1601, Caterpillar requested that the following entities be included on the verdict sheet: Komatsu, Clark Equipment Company, Hyster, Victor, Bendix and Borg Warner Corporation. TT1754: :15. Plaintiff advanced one and only one legal ground for denying the application. Plaintiff s counsel first conceded that through a hypothetical he had posed, Dr. Zhang frankly testified that all of his exposure cumulatively during the 15-year period that he performed brake, clutch, and gasket work was a sufficient cause of the lung cancer. TT1755: Counsel then stated plaintiff s sole argument in opposition to Caterpillar s application: I then asked a second set of hypotheticals, all of which were specifically directed to the exposures to Caterpillar only. There is no evidence in the record, no doctor has been asked regarding whether any of the other articulated exposures to any of the Article 16 companies [Caterpillar s counsel] now seeks to have on the verdict sheet whether the exposures to [sic] those companies were substantial contributing factors. To ask the jury to draw an inference from other hypotheticals would be inappropriate. [Caterpillar s counsel] had a full and fair opportunity both through his witnesses and through cross-examination of my experts to ask the appropriate causation questions, and he chose not to do so, so he hasn t met his burden. TT1755: :14. The Court agreed, stating that appears to be my take of the record as well. TT1756:15-16; see also TT1753: :13 (ruling that there was no competent evidence establishing that any other product by any other company to which Mr. Cooney may have identified as being exposed of 35

18 to was a competent or substantial factor in causing his lung cancer to entitle that company to be on the verdict sheet as an Article 16 entity or tortfeasor for purposes of apportionment of fault ). Thus, in opposing the application plaintiff s counsel placed all of his eggs in the specific causation basket. That is, counsel argued that no rational jury could infer from the evidence that the plaintiff s exposure to asbestos from working either on forklifts manufactured by Komatsu, Clark or Hyster or on either brakes, clutches or head gaskets manufactured by Bendix, Borg Warner and Victor, also was a substantial contributing factor in causing his lung cancer. But just the opposite is true. A rational jury that concluded that plaintiff s exposure to asbestos while working on Caterpillar forklifts was such a substantial contributing factor, could rationally conclude only that plaintiff s exposure to asbestos from his work on the forklifts and asbestoscontaining products of each of the other entities also was a substantial contributing factor in causing his lung cancer. After stating the relevant hypotheticals below in section A, we show in section B why the Court s ruling was plainly wrong with respect to the other manufacturers and in Section C why the ruling was plainly wrong with respect to the manufacturers of the asbestos-containing brakes, clutches and head gaskets. The referenced hypotheticals were: A Q Now I want you to assume that from 1969 when he went to work at Hyster until sometime in the summer of 1978 perhaps June as testified to by Mr. Cooney, that he worked as a forklift mechanic. I would like you to further assume that during that time period he testified that he performed maintenance and repair work on Caterpillar forklifts. I would like you to further assume that he testified he performed brake repair work, brake installation work, clutch work, both repair and installation, and engine gasket work, repair and installation on Caterpillar forklifts. I would like you to assume that he described seeing visible dust in the atmosphere after of 35

19 performing the work on brakes, clutches and gaskets associated with Caterpillar forklifts. I would like you to assume that during this time period the brakes, clutches and gaskets contained asbestos. I would further like you to assume that Mr. Cooney did not wear a mask or respirator or any other type of protective device while performing this work. I d finally ask you to assume appropriate latency and diagnosis in 2013, do you have an opinion to a reasonable degree of medical certainty whether those exposures done in the absence of cigarette smoking would have been sufficient to cause Mr. Cooney s lung cancer? TT1341:1-26. Dr. Zhang answered, Yes, absolutely, TT1342:1, and explained his answer. TT1342:4-17. In the interest of brevity, we summarize it: all know that the clutches, gaskets and brakes contain asbestos; working on them generates a lot of visible dust containing millions of fibers of asbestos that plaintiff regularly breathed into his lungs over about a nine-year period; and this amount of carcinogen certainly can cause lung cancer. The next hypothetical asked Dr. Zhang to assume as well plaintiff s smoking history and asked whether he had an opinion to a reasonable degree of medical certainty whether the exposures articulated by Mr. Cooney by Caterpillar forklift products combined with the cigarette history were a substantial contributing factor in causing his lung cancer. TT1342: Dr. Zhang answered, Yes, also smoking and asbestos contributes to lung cancer. TT1342: Counsel then asked Dr. Zhang to assume in addition that when Mr. Cooney was at Hyster he worked on a lot of Caterpillar forklifts and removed old brakes using an air hose to blow out dust and debris that he saw and breathed. TT11342: :26. Dr. Zhang then testified that his opinion to a reasonable degree of medical certainty was that the resulting exposure was a substantial contributing factor in causing Mr. Cooney s lung cancer. He explained that this brake work generates a lot of visible dust, that Mr. Cooney inhale[d] a lot of asbestos, and that can lead to the development of lung cancer. TT1344: of 35

20 Counsel then posed an additional hypothetical asking Dr. Zhang to assume essentially the same exposure to asbestos from Mr. Cooney s work on replacement brake parts. TT1344: :4. Dr. Zhang gave the same response the exposure was a substantial contributing factor [f]or the same reasons as articulated about the brake removal process. TT1345:6-8. Additional hypotheticals were then posed with respect to Mr. Cooney s clutch work on Caterpillar forklifts (the removal of clutches and installation of new, asbestos-containing clutches) and his work on asbestos-containing head gaskets on Caterpillar forklifts. TT1345:9-1347:8. In response, Dr. Zhang gave the same opinion each of these exposures was a substantial contributing factor in causing Mr. Cooney s lung cancer. TT1345:25-26, 1346:16, 1347: B If as a result of Mr. Cooney s work on the forklifts of each of the other three forklift manufacturers (Komatsu, Clark and Hyster) over the roughly nine-year period he was employed at Hyster, he was exposed to and inhaled asbestos fibers from each of their forklifts to an extent that cannot be differentiated from his exposure to and inhalation of asbestos fibers as a result of his work on Caterpillar forklifts, then it would be indisputable that the Court erred in denying Caterpillar s application pursuant to CPLR 1601 with respect to the other forklift manufacturers for the reason asserted by plaintiff s counsel. After all, there then would be no rational basis for the jury to have concluded, as it did, that Mr. Cooney s exposure to and inhalation of asbestos fibers from his work on Caterpillar forklifts was a substantial contributing factor in causing his lung cancer, but his exposure to and inhalation of asbestos fibers from his work on the forklifts of each of the other three manufacturers was not a substantial contributing factor in causing his lung cancer. For that reason it would be utterly irrelevant that there was no express testimony from Dr of 35

21 Zhang that Mr. Cooney s exposure to asbestos from his work on the forklifts of each of these manufacturers also was a substantial contributing factor in causing his lung cancer. Mr. Cooney s testimony establishes beyond cavil that he was exposed to and inhaled asbestos fibers when working on the forklifts of each of the other manufacturers to an extent that cannot be differentiated from his exposure to and inhalation of asbestos fibers when working on Caterpillar forklifts. He first testified at length about how he was exposed to visible asbestos fibers while he was employed by Hyster when doing brake, clutch and head gasket work on forklifts manufactured by Clark, Hyster and Komatsu. TT252:8-262:17; TT283:8-289:10; TT537:20-582:26. Although he could not say how often he did the clutch work on a monthly basis, he did it [q]uite often. TT254: Similarly, he did brake-replacement work [q]uite often, TT259:3, and gasket-replacement work [q]uite often. T260:16. He worked on the forklifts and other industrial equipment out of the shop i.e., in the field most [of] the time. TT253:6. He believed he was not exposed to asbestos while employed at Hyster other than as a result of working on the asbestos-containing brakes, clutches and head-gaskets of forklifts manufactured by Clark, Hyster and Komatsu. TT262:17. He gave no testimony nor any testimony supporting an inference that he did more work on forklifts manufactured by one of the three companies than the others. After a short recess, TT561:26, and the conclusion of examination by Caterpillar s counsel, TT582:26, the questioning of Mr. Cooney by his counsel began. TT583:1-2. At the outset, counsel noted that Mr. Cooney had mentioned Clark, Komatsu and Hyster when asked specifically what companies forklifts he had worked on while at H[y]ster, and asked if there of 35

22 were any other brands that [he] worked on that [he] ha[d]n t mentioned so far? TT583:9-12. Mr. Cooney answered: Caterpillar actually. I thought I mentioned it. TT583: He worked on Caterpillar forklifts over the nine years in different places because I was outside, TT583:22-23, but also worked on them inside. TT583:24-584:1, 584: He believed the amount of the asbestos he was exposed to while doing brake work [p]robably did not change even when he worked outside rather than inside. TT He did brake repair work on all four brands of forklifts, TT585:3-8, and did [b]asically the same types of repair work on Caterpillar equipment that he did on the other three brands of forklifts. TT585:9-17. He believed he was exposed to asbestos from the work he did on Caterpillar equipment, and was exposed the [s]ame as the other ones. TT585: He then went on to testify to the ways he was exposed to asbestos while doing brake, clutch and head gasket work on Caterpillar forklifts, and his testimony on the ways he was so exposed is indistinguishable from his testimony on the ways he was exposed while doing that same work on the other three brands of forklifts. TT586:22-591:7. He testified specifically that he was exposed to asbestos, and how he was so exposed, from brake work and clutch work on Caterpillar forklifts the [s]ame as the other work. T585:25-86:20. And he even testified not only that the process of replacing a clutch was basically the same regardless of the manufacturer, TT593:3-13, but more generally that he was exposed to asbestos in the same manner, regardless of the manufacturer. TT593: Moreover: A forklift is a forklift is a forklift. TT610:26. Accordingly, there certainly was a reasonable view of the evidence that if Mr. Cooney s exposure to asbestos from his work on Caterpillar forklifts was a substantial contributing factor in causing his lung cancer, his exposure to asbestos from his work on each of the other three 6 Mr. Cooney was incorrect; he had not previously mentioned Caterpillar at all, let alone when specifically asked what brands of forklifts he had worked on while at Hyster of 35

23 brands of forklifts was a substantial contributing factor in causing his lung cancer. See Sargeant v. New York Infirmary Beekman Downtown Hosp., 222 A.D.2d 228, 228 (1st Dep t 1995) (a jury finding in medical malpractice involving disputed blood transfusion warranted an instruction that [the jury] determine whether [non-party] in fact ordered the transfusion as the evidence suggested, and if so, that it apportion liability, pursuant to CPLR Article 16 ) (emphasis added). See generally Bigelow v. Acands, Inc., 196 A.D.2d 436, ) (1st Dep t 1993) (Defendant should not have been precluded from having the jury determine whether it should not be held solely responsible in light of the evidence demonstrating that defendant was not the sole manufacturer of the asbestos products to which the injured parties were exposed ). For these reasons, the Court should have rejected plaintiff s sole argument in opposition to the inclusion on the jury verdict of the other three forklift manufacturers for purposes of CPLR C The Court also should have rejected plaintiff s objection to Caterpillar s request with respect to the asbestos-containing brakes, clutches and head gaskets manufactured by Victor, Bendix and Borg Warner. Mr. Cooney testified that in working on forklifts of all the forklift manufacturers, he was exposed to the asbestos contained in the separate parts produced by each of these entities. TT255:26-257:24; 259:16-20; 261:20-23; 283:8-13; 284:21-26; 285:11-13; 286:8-11; 287:12-26; 556:13-557:4; 558:14-16; 559:18-21; 570:26-571:7; 574:23-575:13; 580:15-582:26; 592:5-10; 611: Accordingly, the jury could not have rationally accepted Dr. Zhang s testimony that Mr. Cooney s exposure to asbestos while working on Caterpillar s forklifts was a substantial contributing factor in causing Mr. Cooney s lung cancer, without also concluding had the issue been presented to them, as it should have been that his exposure to of 35

24 the asbestos-containing brakes, clutches and head gaskets also was such a substantial contributing factor. 7 For the foregoing reasons, the verdict should be set aside and a new trial ordered. IV. PLAINTIFF S COUNSEL S REPREHENSIBLE AND EGREGIOUS STATEMENTS DURING SUMMATION REQUIRE A NEW TRIAL As we show below, during his summation plaintiff s counsel repeatedly, indeed pervasively, made reprehensible and egregiously improper statements that were highly prejudicial to Caterpillar and require a new trial. The Relevant Law The First Department s opinion in Berkowitz v. Marriot Corp., 163 A.D.2d 52 (1st Dep t 1990), starkly establishes the grossly improper nature of so many statements made by plaintiff s counsel during summation. Accordingly, we quote below in full the passages of the Court s opinion that discuss the conduct of plaintiff s counsel: [W]hat does mandate reversal is the reprehensible conduct of plaintiff s counsel in cross-examination and particularly during his summation in the course of which he engaged in an unfair and highly prejudicial attack upon the credibility and competence of defendants expert witnesses and attorneys. Accordingly, the two physicians retained by the defense were repeatedly depicted as hired guns who were brought into the litigation to fluff up the case and fill up some time, and moreover, their testimony was attacked as having been designed solely to bolster defendants attorney s promise to you that he s going to show that there was no reason to obtain physicians for Suffolk County except that they could not locate a physician who would support their case from here to Suffolk County. After that, boy, it s Europe. Plaintiffs lawyer, referring to matters not in evidence, speculated that the Suffolk County physicians had been hired because there was some undisclosed relationship between them and defendants present or prior counsel. Therefore, he remarked, I can t conceive of any reason why you would have to go to Suffolk County to 7 Understandably, plaintiff did not oppose the CPLR 1601 application on either the ground that there was no reasonable view of the evidence that one or more of the proposed Article 16 entities had not been negligent in manufacturing and/or selling asbestos-containing products without adequate warning about the health hazards associated with asbestos in its products. Verdict Sheet, Question 3. There was, after all, ample evidence from which the jury reasonably could have inferred that none of the entities had given adequate warning and all of them had been negligent in failing to do so. See, e.g. TT287:3-5; 549:2-4; 561:12-16; 600:26-601: of 35

25 have a doctor when you have so many doctors, right here, the best in the world. Equally egregious was his statement that the defense attorney was merely carrying out instructions from his principals, and possibly he doesn t even believe himself some of the things that he said, but he has to do what he has to do. The impact of the summation by plaintiffs counsel, whose purpose was undoubtedly to discredit defendants expert witnesses and attorneys, could only have been devastatingly prejudicial to defendants and amounted to a violation of their right to a fair trial. Id. at Plaintiff s Counsel s Summation To begin, but not with the worst, plaintiff s counsel attacked, and in at best overheated terms, the integrity of Caterpillar s experts in general, telling the jury that I told you in jury selection, I was going to try to prove it, and I said it and my colleagues said I was crazy, I was going to prove their experts were full of shit. Remember I said that to you? That s exactly what this is. That s exactly what we did. TT1838:9-17. Note, too, that counsel improperly testified to out-of-court statements made to him by his colleagues in an obvious effort to bolster his own stature. Later, plaintiff s counsel personally attacked Caterpillar expert Dr. Benjamin Safirstein, Caterpillar and counsel for Caterpillar, offered his frank[] personal opinion and asserted that they had perpetrated a fraud on the Court. And, as in Berkowitz, counsel essentially tarred Safirstein as a hired gun. Moreover, he expressly encouraged the jury to be influenced by emotions anger and outrage. Specifically, when referring to Dr. Safirstein s testimony, plaintiff s counsel stated: The truth doesn t change. It hurts sometimes when you are confronted with it, but the truth doesn t change his testimony changed. But whoever wants to hire him, he will be here in a second. Really, when he told you that, were you like what are you talking about, based upon what we have heard from the other doctors [?] If asbestos is attributed without asbestosis, he has no role. He can t make money anymore of 35

26 He told you he doesn t testify on mesothelioma cases because he believes asbestos causes it in every one of those cases. He told you there aren t that many more asbestos cases. He needs to say this to keep making money. No asbestosis necessary no money for Dr. Safirstein. He has a financial interest in deceiving you and perpetrating a fraud. I can t believe Caterpillar called him, quite frankly.. It s fraud. It s outrageous that [Caterpillar] called him.. You should be insulted, you should be angry that Caterpillar called him to testify. He was trying to deceive you. He was trying to fool you. It s outrageous what Caterpillar did in this case. TT1819: ; TT1821:2-3; TT1818: At the outset of his summation, counsel questioned the integrity of Caterpillar s counsel in the same egregious manner condemned in Berkowitz: Caterpillar said it to you, I m not even sure he believed it, you re not going to get to the damages component, I m begging you not to do that because they know the damage in this case are [sic] substantial. TT1798:19-22 (emphasis added). Counsel told the jury that he tried to figure out a title for what I believe happened during the course of this trial. TT1799:11-12 (emphasis added). After thus improperly invoking his personal opinion, counsel proclaimed what the title was, expressly vilifying Caterpillar (and, implicitly, Caterpillar s counsel) and did so by imputing to Caterpillar pervasive misconduct generally, in other cases, without any evidentiary support for that sweeping condemnation. [t]his is the title I came up with. Deadly dust, deception, deceit and deny, negligence the Caterpillar way. TT1799:17-18 (emphasis added). 8 Caterpillar moved for a mistrial based on this egregiously improper attack. TT1867:6-9. The Court denied the request and later gave only an instruction to the jury that made no reference to any inflammatory and irrelevant attacks on Caterpillar s counsel. Rather, the Court referred only to characteriz[ations] by the attorneys the jurors may have heard TT1888: of 35

27 With respect to one of Caterpillar s experts, counsel stated that defense counsel had referred to him as a certified industrial hygienist, and immediately assailed the witness s mental health with mockery: I think it should be certifiable industrial hygienist. TT1800:16-17 (emphasis added). He then immediately attacked Caterpillar s other experts in the same egregious way plaintiff s counsel did in Berkowitz: These folks were hand-picked from around the country, Illinois, New Jersey, and I suggest to you they had to go all the way to California to find someone to come here to say what this guy [the certifiable industrial hygienist] tried to say to you and couldn t find anybody else. But somehow, Caterpillar finds this guy, has him come in and tell you you need [asbestosis to attribute lung cancer to asbestos exposure] TT1800:19-23; TT1826:6-7. Counsel later compounded this misconduct by contrasting Caterpillar s experts with one of the experts he had called, Dr. Markowitz, who is right down the street in New York, we didn t have to go looking for him all over the country, he s right here in New York City. TT1811: :3. That Dr. Markowitz is right here in New York City is bereft of any rational persuasive force; of course, however, it could have emotional force for anyone with a hometown bias. Counsel even went so far (and so low) as to portray Dr. Safirstein as someone okay with racial discrimination. In his testimony, Dr. Safirstein provided his opinion that lung cancer could not be attributed to asbestos exposure unless there also was evidence of asbestosis (of which there was none in this case). He relied on, among other things, a South African study of asbestos miners in which black miners were not included. Putting aside that the record does not indicate why they were excluded, nothing at all supports the illogical conclusion that the study results could have been any different had they not been excluded. Indeed, plaintiff s counsel expressly rejected that conclusion. TT1822: But here s what he had to say about Dr. Safirstein: of 35

28 He relies upon the Sluis-Cremer study, where he freely admits that there was racial discrimination in the set up of the study. TT1822: Dr. Safirstein did not admit to racial discrimination. Continuing, counsel stated: It s a flaw in the study design, but Dr. Safirstein relies upon the racial discrimination and the South African miner study and he seemed to be okay with it. TT1822: This assertion that Dr. Safirstein seemed okay with racial discrimination is disgraceful. Astoundingly, counsel even stated the following about Dr. Safirstein: If I had a cold I might go see Dr. Safirstein. I might not leave my wallet in his office, but that s about it (emphasis added). TT1804: And then counsel made yet another statement like one of the egregious ones in Berkowitz: Dr. Safirstein didn t believe anything he said. TT1804: Praising himself, again invoking his own character, and testifying to boot, counsel asked the jury why plaintiff was not contending that asbestos exposure was the sole cause and answered as follows: You know why? Because I wasn t unreasonable. TT1805: Counsel flagrantly told the jury what his opinion of the veracity of defense experts was, and improperly told the jurors what they should conclude from objections he voiced. Thus, after unobjectionably arguing that the case was a smoking and asbestos case, he improperly stated: That s why I ve been jumping out of that seat like a lunatic yelling every time I don t think they [defense experts] are telling you the truth. TT1814:3-5. This of course also defies the elementary precept that the jury can attach no significance to the making of an objection. Counsel launched another more explicit and vicious attack on defense counsel, one that began by more than suggesting, without the slightest support, that defense counsel was irrationally of 35