SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE:NEW YORK COUNTY ; N.Y.C.A.L. ASBESTOS LITIGATION I.A.S. Part 12 This document relates to: KATHLEEN BARBER, Individually and as a (Jaffe, J.) Index No.: 190112/2016 Personal Representative of the Estate of DANIEL N. October 2016 In Extremis BARBER, Deceased, Belluck & Fox, LLP. Plaintiffs, -against- PRE-ARGUMENT STATEMENT A.O. SMITH WATER PRODUCTS, et al., Defendants Defendant, AII Acquisition, LLC, f/k/a AII Acquisition Corp., f/k/a Athlone Industries, Inc., f/k/a Holland Furnace Company ("AII"), for its pre-argument statement pursuant to section 600.17 of the Rules of the Appellate Division, First Department, respectfully states as follows: 1. The title of this action is set forth in the above caption. 2. (A) the full names of the original parties from the Summons and Complaint filed on April 18, 2016 appear below as follows: Plaintiff: DANIEL NICHOLAS BARBER and KATHLEEN RAY BARBER Defendants: A.O. SMITH WATER PRODUCTS; AIR & LIQUID SYSTEMS CORPORATION, as Successor by Merger to Buffalo Pumps, Inc.; ALFA LAVAL, INC.; ARMSTRONG INTERNATIONAL, INC.; ATWOOD & MORRILL CO., INC. d/b/a Weir Valves & Controls USA Inc.; AURORA PUMP COMPANY; BIRD INCORPORATED f/k/a Bird & Son, Inc.; BORGWARNER MORSE TEC LLC; BURNHAM CORPORATION; BW/IP INTERNATIONAL CO., formerly known as Borg Warner Iñdüãfriâl Products Inc., a former iiibsidlåry of and successor to Borg Warner Corp. and Byron Jackson Pumps; CARRIER CORPORATION; CBS CORPORATION, a Delaware Corporation, f/k/a Viacom Inc, Successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; CERTAIN-TEED CORPORATION; CLARK RELIANCE CORPORATION, Individually and as Successor to Jerguson; CLEAVER BROOKS COMPANY f/k/a Aqua Chem, Inc.; CRANE CO.; CROSBY VALVE AND GAGE COMPANY; CROSBY VALVE, INC.; CROWN, CORK & SEAL COMPANY, INC., Individually and as Subsidiary to Crown Holdings, Inc.; CURTISS WRIGHT FLOW CONTROL CORPORATION, Individually and as Successor to Farris Valves and/or Sprague Pumps; DEAN PUMP DIVISION; DEZURIK, INC.; EATON CORPORATION, Individually and now known as Eaton Electrical, Inc. and As Successor to The Vickers Pump Compon, and Cutler Hammer, Inc.; {N0787675-1} 1 of 6
ELECTROLUX HOME PRODUCTS, INC., Individually and as Successor to Tappan and Copes Vulcan; ELLIOTT TURBOMACHINERY CO., INC.; FAIRBANKS COMPANY (THE), Individually and as Successer to Fairbanks Valves; FALK CORPORATION (THE); FLOWSERVE US, INC., solely as Successor to Rockwell Manufacturing Company, Edward Valves, Inc., Nordstrom Valves, Inc. and Edward Vogt Valve Company; FMC CORPORATION, Individually and as Successor to Northern Pump Company, Coffin and Peerless Pump Company; FOSTER WHEELER, LLC; GARDNER DENVER, INC.; GENERAL ELECTRIC COMPANY; GEORGIA-PACIFIC CORPORATION, Individually. and as successor to Bestwall Gypsum Company; GOODRICH CORPORATION f/k/a B.F. Goodrich Company, and as Successor in Interest to Goodrich Gulf Chemical, Inc.; GOODYEAR CANADA, INC.; GOODYEAR TIRE & RUBBER COMPANY (THE); GOULDS PUMPS INC.; GREENE, TWEED & CO., LLP, Individually and as Successor to Palmetto Packings; GRINNELL CORPORATION; HONEYWELL INTERNATIONAL, INC., Individually and f/k/a AlliedSignal, Inc., and as Successor-in-Iñterest to The Bendix Corp.; HOFFMAN BROTHERS, INC.; HOWDEN BUFFALO, INC., Individually and as Successor In Interest to FB Sturtevant, The Howden Buffalo Group and Buffalo Fan; I.T.T. INDUSTRIES, INC., Individually and as successor to Bell & Gossett; IMO INDtl Si'RIES, INC. f/k/a Delaval, Inc., Individually and as Successor to Turbine Equipment Company; JOHN CRANE, INC.; KINNEY VACUUM PUMP COMPANY; METROPOLITAN LIFE INSURANCE COMPANY; NAPA AUTO PARTS a/k/a National Automotive Parts Association; NASH ENGINEERING COMPANY (THE); OWENS ILLINOIS, INC.; RHEEM MANUFACTURING CORP.; RILEY POWER, INC. f/k/a Babcock Borsig Power, Inc. and f/k/a Riley Stoker Corporation d/b/a DB Riley, Inc.; SPENCE ENGINEERING COMPANY, INC.; SPIRAX SARCO, INC.; SPX COOLING TECHNOLOGIES, INC., Individually as successor to Marley Cooling Technologies and Marley Cooling Towers; SUPERIOR LIDGERWOOD MUNDY CORP., a/k/a Lidgerwood Manufacturing Co., Individually and as Successor to M.T. Davidson Co.; TACO, INC.; TODD SHIP YARDS CORPORATION; TYCO FLOW CONTROL, INC., Individually and as Successor to Keystone and Grinnell Corporation; TYCO INTERNATIONAL (US) INC., Individually and as Successor to Hancock Valves, Keystone, Lonergan Valves and Grinnell Corporation; UNION CARBIDE CORPORATION; VELAN VALVE CORP.; WARD LEONARD ELECTRIC CO.; WARREN PUMPS, LLC, Individually and as Successor to The Quimby Pump Company; WEIL McLAIN, a division of Marley Wylain Company; WESTINGHOUSE ELECTRIC CORPORATION; WILLIAM POWELL COMPANY (THE); YORK INTERNATIONAL CORPORATION, Individually and as Successor to Frick Company; ZURN INDUSTRIES, INC. a/k/a and successor-in interest to Erie City Iron Works.. (B) By First Amended Summons and Complaint dated April 22, 2016, the following entities were added as defendants: BOEING COMPANY (THE), Iñdividually and as Successor to McDonnell Douglas; EATON AEROQUIP, INC. f/k/a Aeroquip Corporation; MCDONNEL DOUGLASS CORPORATION; PRATT & WHITNEY POWER SYSTEMS, INC.; ROLLS ROYCE CORPORATION,-Individuälly-and afsuccessor fo Allisõn EngiifesF~UNITEIT TECHNOLOGIES CORPORATION, Individually and as Successor to Pratt & Whitney/Aircraft Division); (C) By Third Amended Summons and Complaint the following entities were added as defendants: AII ACQUISITION CORPORATION, LLC, Individually and as successor in interest to Athlone Industries, Inc., and Holland Furnace Company; COLUMBIA BOILER COMPANY OF POTTSTOWN; COMPUDYNE CORPORATION, Individually and as Successor to York- Shipley; ECR INTERNATIONAL, INC., Individually and as Successor to Dunkirk, Dunkirk Boilers and Utica Boilers; KOHLER CO.; LENNOX INDUSTRIES, INC., Individually and as successor to Lennox Furnace Cunispainf and Ducane; PEERLESS INDUSTRIES, INC.; SID {N0787675-1} 2 of 6
HARVEY INDUSTRIES, INC.; SID HARVEY SUPPLY, INC.; UTICA COMPANIES INC., Formerly Utica Boilers, Inc., now known as ECR International; UTICA PACKING & PLASTIC; WALLEY PRECISION SEAL, LLC, Individually and as Successor to Utica Packing and Plastics. (D) By Fourth Amended Summnns and Complaint dated June 28, 2016 the following entities were added as defendants: CRANE CO.; plaintiffs' (E) By Fifth Amended Summons and Complaint dated July 11, 2017, were amended to KATHLEEN R. BARBER, Individually and as Personal Representative of the Estate of DANIEL N. BARBER, deceased. 3. Counsel for Defendant-Appellant, AII: Kerryann M. Cook, Esq Ryan W. Sweeney, Esq. McGivney, Kluger & Cook, P.C. 23d 80 Broad Street, Floor New York, New York 10004 (212) 509-3456 4. Counsel for Plaintiff-Respondent, Kathleen R. Barber, Individually and as Personal Representative of the Estate of DANIEL N. BARBER, deceased: Jordan Fox, Esq. Belluck & Fox, LLP Attorneys for Plaintiffs 545 5th 4th PlOOr New York, New York 10036 5. The Court and County from which the appeal is taken is the Supreme Court of the State of New York for the County of New York. 6. The nature of this case is as follows: tort/personal injury (asbestes). 7. This appeal is taken from a Decision and Order of the Supreme Court of the State of New York, County of New York, I.A.S. Part 12 (Jaffe, J.S.C.), dated August 28, 2018, entered in the Office of the Clerk of the Court on August 29, 2018, and served with Notice of Entry on September 7, 2018, a copy of which is attached hereto as Exhibit A, which after a-trialcordered a new trial and denied defendant AIFs motion for a directed verdict pursuant to CPLR 4401 and 4111. 8. Plaintiff's decedent Daniel Barber was diagñosed with pleural mesothelioma and alleged that it was caused by various exposures to asbestos during his lifetime. Relative to the appeal at hand, Mr. Barber testified, that he was exposed to asbestos from removing Holland Furnaces, for which AII is liable, from residences. Mr. Barber alleged that as a result of his exposures to asbestos he developed mesothelioma and he passed away. subsequently {N0787675-I} 3 of 6
This matter went to trial before Justice Barbara Jaffe on March 12, 2018, concluding with the dismissal of jurors on April 25, 2018. The jury returned with a verdict on April 24, 2018 finding the remaining defendants, including AII, did not contribute to decedent's disease, but then assigned AII a portion of liability and a damages award. The Court subsequently ordered the jury to correct their verdict; however, no subsequent verdict was rendered or entered by the Court and the jury was dismissed by the Court. AII moved for a directed verdict pursuant to CPLR 4401 and 4111 for entry of judgment in its favor. AII moved for a directed verdict under CPLR 4401 on the grounds that plaintiffs failed to establish specific causation, as required by Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), and Matter of New York City Asbestos Litigation ("Juni v. A.O. Smith Water Products Co."), 148 A.D.3d 233 (1st Dep't 2017). CPLR 4111 states that when, as here, a court requires a jury to answer written interrogatories on one or more issues of fact, and "one or more is inconsistent with the general verdict, the court shall direct entry ofjudgment in accordance with the añswers, notwithstanding the verdict." general CPLR 4111(c) (emphasis added). Thus, AII moved under CPLR 4111 for a directed verdict because when the jury came back with the only verdict read and recorded in open court which found none of the remaining defendants, including AII, was a substantial factor in the development of Mr. Barber's disease in their answers to specific jury interrogatories, those responses control over any general verdict or damages award. See Pavlou v. City of New York, 8 N.Y.3d 961,962-63 (2007); Crosby v. Monteflore Med. Ctr., 128 A.D.3d 523, 524 (1st Dep't 2015); Alcantara v. Knight, 123 A.D.3d 622, 623 (1st Dep't 2014). Here, any subsequent damages award, apportionment of fault, or reconsideration by the jury was superfluous, should be stricken, and judgment entered in AII's favor on the specific juror interrogatory responses regarding AII. AII seeks a reversal of those portions of this decision because the Court misappreheaded the relevant law and overlooked critical facts, which establish AII's entitlement to judgment as a matter of law under CPLR 4401 and 4111 and for such other and further relief as this Court may deem just and proper. 9. There is no other known pending appeal in this matter. Pursuant to the trial and decision that is the subject of this appeal, this matter remaim before Justice Jaffe in the Supreme Court, New York County, for retrial, and may proceed to retrial in November 2018. Dated: New York, New York. September43r2018 McGivney, Kluger & Cook, P.C. Ryat V. Sweeney, Esq Kerryann M. Cook, Esq. Attorneys for defendant AII Acquisition, LLC (N0787675-1} 4 of 6
80 Broad Street, 23rd FlOOr New York, New York 10004 (212) 509-3456 To: Jordan Fox, Esq. Belluck & Fox, LLP Attorneys for Plaintiffs 545 5th benue, 4)h FlOOr New York, New York 10036 -and- All Defense Counsel of Record (N0787675-l} 5 of 6
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE:NEW YORK COUNTY N.Y.C.A.L. ASBESTOS LITIGATION I.A.S. Part 12 This document relates to: KATHLEEN BARBER, Individually and as a Index No.: 190112/2016 Personal Representative of the Estate of DANIEL N. October 2016 In Extremis ' BARBER, Deceased, Belluck & Fox LLP Plaintiffs,! CERTIFICATION A.O. SMITH WATER PRODUCTS, et al., Defendants The undersigned hereby certifies that the papers served herein the Chief Administrator of the Courts of the State of New York. comply with the Rules of Dated: New York, New York September 13, 2018 McGivney, Kluger & Cook, P.C. By: To: Jordan Fox, Esq. Belluck & Fox, LLP Ry W. Sweeney, Esc Attorneys for defendant AII Acquisition, LLC 80 Broad Street, 23rd FlOOr New York, New York 10004 Attorneys for Plaintiffs New York, New York 10036 -against- -and- All Defense Counsel of Record {N0787675-1} 6 of 6