FILED: NEW YORK COUNTY CLERK 04/25/ :05 PM INDEX NO /2015 NYSCEF DOC. NO. 355 RECEIVED NYSCEF: 04/25/2018

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1 STATE OF NEW YORK SUPREME COURT LEWIS COUNTY COURTHOUSE 7660 North State Street Lowville, New York HON. CHARLES C. MERRELL e (3W 3%-5366 Far (315) 266-U75 DEBORAH W. EARL Supreme Court Justice Chief Clerk Tel: (315) Steven A. Smith Principal Law Clerk Rebecca E. Aucter Sr. Court Office Assistant Teresa M. Warcup Tel: (315) Secretary November 8, 2017 Via Electronic and Regular Mail Keith W. Binder, Esq. Levy, Phillips & Konigsberg, LLP 800 Third Avenue New York, New York Re: Nash v. A.W. Chesterton, Co., Inc., et al. Index No ; RJI No Dear Mr. Binder: Enclosed for filing please find the original Decision and Order deciding the post trial motion and motion for directed verdict in regard to the above referenced matter. Please note that the act of signing the enclosed Decision does not constitute entry or filing under CPLR Parties are not relieved of the applicable provisions of the rule with regard to serving Notice of Entry. Concurrently, and by copy of this letter, the Court is conveying to the Onondaga County Court Clerk's Office any original papers on the motion that were received by Chambers on behalf of each party for filing with the Onondaga County Clerk, along with a copy of the Decision. This is in accordance with the Memorandum of the Chief Administrative Judge, Ann Pfau, dated July 1, Very tr ours, Teresa M. Warcup /tmw Secretary to Hon. Charl C. Merrell Enclosure cc: Donald A. W. Smith, Esq., via electronic mail only Holly M. Polglase, Esq., via electronic mail only Anthony J. Sbarra, Jr., Esq., via electronic mail James E. Makowiec, Chief Clerk only

2 At a Term of the Supreme Court of the State of New York held for the County of Onondaga at the Lewis County Courthouse, Lowville, New York on the 27th day of April, STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA THE ESTATE OF LEWIS NASH, MARY NASH AS DECISION AND ORDER EXECUTRIX. Plaintiff, Index No v. RJI No A.W. CHESTERTON COMPANY, INC., et al., Defendants. APPEARANCES: LEVY KONIGSBERG, LLP KEITH W. BINDER, Esq., of counsel AMBER R. LONG, Esq., of counsel Attorneys for Plaintiff a DONALD A. W. SMITH, P.C. DONALD A. W. SMITH, Esq., of counsel O' HERMES, NETBURN, O'CONNOR 8 SPEARING, P.C. HOLLY M. POLGLASE, Esq., of counsel ANTHONY J. SBARRA, JR., Esq., of counsel Attorneys for Defendant Navistar, Inc. Merrell, C.C., J.S.C. Before the Court are motions for directed verdict and a post trial motion by Defendant Navistar, Inc. ("Navistar"), for an Order pursuant to CPLR 4404(a) setting aside the jury's verdict and dismissing the action, or, in the alternative, ordering a new trial on all issues, or in the alternative on the issues of the allocation of fault and/or the award of future damages. PROCEDURAL HISTORY matter proceeded to trial and on This commencing December 3, 2014 concluding

3 December 16, The Court will not attempt to summarize the evidence here. The jury found that Plaintiff's decedent Lewis M. Nash (" Nash" ("Nash") was exposed to asbestos fibers manufactured, sold or distributed by Navistar, that Navistar was negligent in failing to adequately warn about the dangers of such products, and that Navistar's negligence was a proximate cause of Nash's mesothelioma. Nash was a bus driver employed by the Fayetteville-Manlius Central School District and alleged exposure to asbestos from brakes and gaskets sold by Navistar. Such exposure occurred in the bus garage at the school, where Nash would routinely spend time between his bus runs. The jury awarded Plaintiff $3 million in conscious pain and suffering, $3 million in emotional pain and suffering between the onset of Nash's disease and his death; $200,000 for loss of services and society from the onset of Nash's disease until his death; $1,000,000 for wrongful death from the date of death until date of verdict and $500,000 for wrongful death from date of verdict until the time Mr. Nash would have otherwise been expected to live, granting a total jury award of $7.7 million. Navistar moved for a directed verdict at the close of Plaintiff's proof, on the following grounds: (a) dismissal of the punitive damages cause of action for failure to prove necessary conduct; (b) dismissal of the failure to warn claim based on no legal duty to bystanders such as Nash; and (c) failure of proof as to general and specific causation based on objections to the testimony of Dr. Abraham, plaintiff's expert. The Court granted Navistar's motion dismissing the claim for punitive damages, as no such charge was presented to the jury. The issues of lack of duty to Nash and failure to prove causation will be considered as part of Navistar's post-trial motion. Defendant makes the following arguments in support of its CPLR 4404(a) motion: 2

4 1. The causation opinions of Plaintiff's expert, Dr. Abraham, were inadmissible and Plaintiff presented insufficient evidence of general or specific causation. 2. Navistar owed no duty to warn a bystander like Mr. Nash and Plaintiff failed to provide sufficient evidence of causation with respect to the alleged failure to warn. c 3. A new trial should be ordered to correct errors in evidentiary rulings. 4. The Court failed to instruct the jury on the issue of apportionment of liability. 5. The jury's damage awards should be substantially remitted because they were based on legal errors and were otherwise excessive. Plaintiff opposes the motion as follows: 1. The jury's verdict that exposure to asbestos was a cause of Mr. Nash's mesothelioma was based upon convincing evidence that was correctly admitted. 2. Causation and Duty to Warn a. Navistar had a legal duty to warn. b. There was sufficient basis for the jury's verdict that Navistar's failure to warn was a proximate cause of Mr. Nash's mesothelioma. c. Navistar waived its argument that Plaintiff did not prove that Mr. Nash would have followed a warning had one been given. 3. The Court made no evidentiary errors that merit vacating the jury's verdict. 4. The Court properly ruled that Navistar did not meet its burden of proving that Plaintiff was exposed from any other entity's products. 5. There is no basis for reducing the jury's damages award. a. Navistar waived its objection to the damages questions on the verdict sheet. b. The jury's damages awards were not excessive. 3

5 Under CPLR 4404(a), the Court may set aside a verdict or judgment entered after trial, and direct that judgment be entered in favor of party entitled to judgment as a matter of law, if the verdict was not supported by legally sufficient evidence, since under those circumstances there is "no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 NY2d 493, 499 [1978]). 1. Admissibility specific causation of Dr. Abraham's testimony and evidence of general and Navistar argues that causation opinions of Plaintiff's expert, Jerrold L. Abraham, M.D. were inadmissible and should be stricken because they lacked sufficient foundation and were based on invalid assumptions. Navistar contends Dr. Abraham had no reliable basis to support his opinions as to general causation; that exposure to dust from friction products, such as brakes, can cause mesothelioma. Navistar further contends that Dr. Abraham's opinions as to specific causation were not based on any relevant "scientific expression" of Nash's exposure to asbestos from Navistar's friction products, as required by Parker v. Mobil Oil Corp.,., 7 NY3d 434, 449 (2006), Cornell v. 360 W. 51st St Realty, LLC, 22 NY3d 762 (2014), and more recently In re New York City Asbestos Litigation (Juni), 148 AD3d 233 (1St Dept. 2017). In that regard, Navistar argues that Dr. Abraham's testimony should be stricken because there was no scientific foundation for his testimony that Nash's cumulative exposure to Navistar products were substantial contributing factors in causing Nash's mesothelioma, or that "each and every exposure" was capable of causing Nash's 4

6 mesothelioma. Plaintiff contends that Dr. Abraham's testimony as to general and specific causation had a sufficient foundation and were based on scientific studies; that Nash's exposure to Navistar products was substantial and constituted his only proven exposure to asbestos. In Juni, the First Department considered the burden of proof set forth in Parker, which dealt with benzene exposure, and Cornell, which dealt with exposure to toxic molds, and applied those principles to asbestos exposure. The Juni Court clearly held as follows: 1. 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 defendants' products to cause the disease. 2. It is not necessary to quantify a plaintiff's exposure; however, causation must be established through some scientific method, such as c mathematical modeling based on a plaintiff's work history, or the plaintiff's exposure with that of subjects of reported studies. comparing 3. Experts are required to either quantify decedent's exposure levels or otherwise provide some scientific expression of plaintiff's exposure level, and cannot simply testify only in terms of an increased risk and association between asbestos and mesothelioma. 4. Causation based only on visible dust emanating from a particular defendant's asbestos-containing product will not be enough. Citation to studies that measure the amount of asbestos fibers released by the products at issue and showing that the amount is hazardous, will provide an adequate foundation for liability. 5. That proof of causation is based on the discrete facts of each case. " J uni holds that the standards set by Parker "are not altered by" Lustenring v. A.C. 6 S. Inc., 13 AD3d 69 (2004) Iv. denied 4 NY3d 708 (2005); Penn v Amchem Products, 85 AD3d 875 (1St Dept. 2011); Matter of New York Asbestos Litigation (Marshall), 28 AD3d 255 (1st Dept. 2006). In each of those cases the trial court was 5

7 entitled to rely on evidence linking visible dust to the use of the particular product, where expert testimony established that the extent and quantity of the dust to which plaintiff had been exposed contained enough asbestos to cause the mesothelioma. In J_uni, the testimony of plaintiff's experts as to the content of the dust to which decedent was exposed was found by the court to be equivocal at best, and insufficient to prove that the dust to which the Juni plaintiff was exposed contained any asbestos, or enough to cause his mesothelioma. Id, at 237. As noted by the Court of Appeals in Parker, "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)" 7 NY3d at 448. The Court in Parker held that precise qualifications of exposure levels or use of c the dose response relationship is not always necessary, provided whatever methods the expert uses are generally accepted in the scientific community. "So long as plaintiff's experts have provided a scientific expression of plaintiff's exposure levels, they will have laid an adequate foundation for their opinions on specific causation", (Nonnon v. City of New York, 88 AD3d 384, 396 [3d Dept. 2011]). As for general causation, the link between asbestos and disease is well documented, and Navistar does not dispute that it is generally accepted that inhalation of "raw" asbestos fibers can contribute to an individual risk of developing mesothelioma, as testified to by Dr. Abraham (Defendant's Reply Memorandum of Law, page 4). See Wieqman v. AC&S, Inc., 24 AD3d 375 [1" (" Dept. 2006]) ("The link between asbestos and disease is well-documented, and the parties merely differed as to whether the asbestos contained in this particular product could be released in 6

8 respirable form so as to cause disease. Since the parties agreed on causation, no novel scientific technique or application of science was at issue, and a frye hearing was not warranted") Abraham' Navistar contends, as have other friction defendants, that Dr. Abraham's testimony should be stricken due to lack of epidemological studies showing an increased risk of mesothelioma in auto mechanics, and that the length of asbestos fibers in brakes and the conversion of asbestos to non-asbestos fosterite during braking eliminates brakes as a cause of mesothelioma. Dr. Abraham testified that both long (greater than five microns) and short fibers, found in brake dust, cause mesothelioma, and that if even a small percentage of such fibers are greater than five microns, they would still be in the millions. He further testified that the levels of such asbestos measured in the air in the vicinity of brake work were at least 10,000 times c above background levels of asbestos, which would be sufficient to cause mesothelioma. Dr. Abraham also testified that studies have shown that not all asbestos in brakes is converted to fosterite by the braking process, although most is depending on braking conditions. Further, his testimony was that installation of new brakes, which involves grinding and riveting, does not involve conversion of asbestos to fosterite and causes the release of chrysotile asbestos, which is generally contaminated by tremolite. Plaintiff also offered expert testimony by Dr. Stephen Compton that the School's methods to clean the garage or use of water when cleaning the brakes effected the spread of asbestos throughout the garage and did not remove it from the workplace. Evidence was presented that the opinion of Defendant's expert, Dr. Beasley, that exposure to chrysotile asbestos does not cause mesothelioma, is not shared by a majority of the relevant scientific and medical community. The question 7

9 of general causation was thus the subject of competing expert opinion and properly before the jury for its consideration. Dr. Abraham's testimony was properly admitted for consideration by the jury and was also sufficient to make a showing of specific causation. There was significant testimony as to the scope of Nash's exposure to asbestos at the Fayetteville-Manlius Central School District bus garage from 1957 to There was evidence that Navistar supplied buses and component brakes and gaskets to the School during the period of alleged exposure. Dr. Abraham's opinion was that the visible dust to which Plaintiff was exposed, which derived from bake and gasket work being performed by mechanics in the Fayetteville-Manlius Central School bus garage, contained asbestos in a quantity thousands of times greater than background and was sufficient to be a substantial contributing cause of Mr. Nash's mesothelioma, (Penn v. Amchem c Products, supra 85 AD3d 475). Dr. Abraham's testimony, which was based in part on air sampling statistics testified to by Dr. Stephen Compton and the Rohl study, among others, of asbestos employees to bystanders in the vicinity of brake work, set forth a "scientific expression" of an exposure level sufficient to support the claims against Navistar, (Matter of NYS Asbestos Litigation (Dummit v. A.W. Chesterton), 36 Misc.3d 1234(A), aff'd 121 AD3d 230 [15t Dept. 2014], aff'd on other grounds 27 NY3d 765; Lustenring v. AC&S, Inc., supra, 13 AD3d 69). See Aiso Dominick v. Charles Millar 8 Sons Co., 149 AD3d 1554 (4th Dept. 2017), Where Plaintiff's expert testified that, if a * worker sees asbestos dust, that is a "massive exposure...capable of causing disease". In Dominick the defendant's products consisted of bags of asbestos and asbestos boards, and there was no real dispute that dust from these products contained asbestos. The opinion of Plaintiff's expert in Dominick was that the visible dust to 8

10 which Plaintiff was exposed, which derived from the cutting of asbestos millboard and dumping bags of asbestos into tubs or bins, contained asbestos in a quantity thousands of times great than background and was sufficient to cause Plaintiff's mesothelioma. Such exposure occurred at Plaintiff's workplace on a daily basis, for three months each year, over approximately five years. The Fourth Department specifically noted that the expert's overall testimony met the Parker v. Mobil Oil test for specific causation and, by implication, the holding of Juni which adheres to those requirements. To the extent Dominick may be said to depart from Junj and adopts a somewhat lesser standard of proof, Dominick would control in the instant case. The proof in this case met the level of scientific expression set forth in J_uni, Parker and certainly Dominick. Dr. Abraham's testimony that Nash's exposure to chrysotile asbestos in the bus a garage was part of his cumulative exposure and was a substantial factor in causing his mesothelioma was therefore supported by the record and properly submitted to the jury. Navistar's arguments go to the weight which the jury should have given Dr. Abraham's testimony, not its admissibility. From the foregoing, Dr. Abraham's testimony met the standards set forth in Juni, Lustenring, Penn and Dominick in that there was a foundation or scientific expression of an exposure level sufficient to cause Nash's mesothelioma, based on witness testimony of the frequency, duration and level of Plaintiff's exposure together with studies of the asbestos fiber content of dust generated by brake work in a garage setting, all of which constituted sufficient quantitative evidence of Nash's exposure to asbestos. It is clear that Plaintiff's experts did not solely rely on a generalized, unsupported opinion that any single exposure above background levels can be treated 9

11 as a substantial contribution to an asbestos related disease, commonly referred to as the "each and every exposure" theory. Navistar presented several expert witnesses who testified at length that Navistar's exposure to asbestos from brakes in general and from brake work in the bus garage in particular could not have caused his mesothelioma. The jury was appropriately given the opportunity to fully consider that testimony and resolve the credibility and contentions of the various experts on these issues. Based on the evidence presented there was a valid line of reasoning and permissible inference which led the jury to reach its result. Defendant's motions for directed verdict and its post trial motion are therefore denied as to the issues of general and specific causation. The jury verdict was supported by legally sufficient evidence that Defendant was negligent and its c negligence was a proximate cause of Plaintiff's injury. 2. Duty to Warn / Proximate Cause Based on Failure to Warn Navistar contends it owed no legal duty to warn Nash of the potential dangers of its products by reason of Nash's status as a bystander and not a direct user of their products. Navistar argues that Nash's employer was in a superior position to protect its employees and that Navistar had no duty to provide warnings specifically tailored to Nash. The Court must determine whether an applicable duty to warn owed by the manufacturer to the injured party exists in the first instance, (Matter of New York City Asbestos Litigation (Dummitt), 27 NY 3d 765, 787 [2016]). A duty to warn may not be based entirely on the foreseeability of the harm at issue, though foreseeability defines 10