MARY MURPHY-CLAGETT, AS : DECOTIIS IN OPPOSITION TO

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IN RE: NEW YORK CITY : INDEX NO.: 190311/2015 ASBESTOS LITIGATION : : This Document Relates To: : : AFFIRMATION OF LEIGH A MARY MURPHY-CLAGETT, AS : DECOTIIS IN OPPOSITION TO TEMPORARY ADMINISTRATOR : PLAINTIFF'S MOTION IN LIMINE FOR THE ESTATE OF PIETRO : REGARDING SPOLIATION OF MACALUSO : EVIDENCE AND CROSS MOTION : TO REQUEST A FINDING AS A : MATTER OF LAW THAT : CHRYSOTILE FIBERS ARE THE : ONLY FIBERS ASSOCIATED WITH : BURNHAM LLC'S PRODUCTS I, Leigh A. DeCotiis, an attorney duly admitted to practice law before the courts of the State of New York, affirm under the penalties of perjury pursuant to C.P.L.R. 2106, that the following statements are true, except for those made upon information and belief, which I believe to be true: 1. I am an associate with the firm McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for defendant Burnham LLC, (hereinafter "Burnham" or "Defendant" "Defendant"), and as such, I am fully familiar with the facts contained herein. 2. I submit this Affirmation in opposition to Plaintiff's Motion in Limine seeking an order striking the answer of Defendant Burnham based on spoliation of evidence, or in the alternative, seeking an adverse inference charge at trial. Burnham requests that this Court deny Plaintiff's motion. 3. Burnham also requests that based on the state of the evidence, this Court hold and so instruct the jury that as a matter of law, the only asbestos fibers associated with Burnham boilers are chrysotile asbestos fibers. 3556795 1 1

PRELMINARY STATEMENT 4. As a threshold matter, this "motion in limine" was filed at 6:20pm on Monday April 2, 2018, mere hours before the scheduled jury charge conference. All the "evidence" Plaintiff claims to rely on in this motion is from the trial testimony of Burnham's corporate representative from two weeks ago, on March 20, 2018. The filing of this motion asking for a drastic remedy two weeks later, on the eve of the charge conference is gamesmanship and an inappropriate trial tactic, and the motion should be dismissed in its entirety for this reason alone. 5. Further there is simply no evidence in the record to support Plaintiff's claim of spoliation and thus on the merits this motion should also be dismissed in its entirety. To the contrary, the only affirmative evidence in this case regarding the issue is the trial testimony of Burnham's corporate representative, Roger Pepper, who testified that Burnham never destroyed any documents when they knew there was litigation pending. See Trial Testimony, March 22, 2018 at T2465:20-2466:11. This testimony is dispositive of the issue at hand and the motion should be denied. 6. Plaintiff's motion is based on the completely false premise that Burnham purposefully destroyed documents concerning asbestos or asbestos-containing components associated with Burnham boilers. There is absolutely no evidence to support any claim of Burnham's intentional or negligent destruction of documents relevant to asbestos litigation. Speculation that requisition cards that may have existed, may have been relevant and might have been destroyed is insufficient to meet Plaintiff's burden of proof, and thus Plaintiff's untimely motion should be denied. 7. The conduct Plaintiff accuses Burnham of does not rise to the level required for this Court to strike Burnham's answer and defenses. Plaintiff's alternative request for an adverse 3556795 2

inference charge that Burnham used amosite asbestos on its boilers reveal the true motivation behind this motion - Plaintiff is aware that the only evidence in the record proves that chrysotile asbestos is the only fiber associated with its boilers. As such, this motion is a last ditch effort to preclude the jury from considering the properly admitted evidence that has been presented to it - that only chrysotile is associated with Burnham's boilers. Even were this Court to find that Burnham destroyed relevant evidence, though there is no evidence of such, the "sanction" Plaintiff seeks is illogical and entirely unconnected to the alleged spoliation. 8. Most importantly, whether Burnham ordered asbestos in the 1980s has no bearing on the case at bar. Mr. Macaluso was allegedly exposed to Burnham boilers from 1972 to 1982. Any purchase of asbestos from 1982 or later is irrelevant. Thus the allegedly destroyed requisition cards are entirely irrelevant to the case at bar and Plaintiff can show no prejudice. THERE IS NO EVIDENCE THAT BURNHAM DESTROYED ANY RELEVANT EVIDENCE, AND THUS ANY CLAIM OF SPOLIATION IS FRIVOLOUS. 9. New York law permits a court, in its discretion, to impose appropriate sanctions where a litigant intentionally or negligently disposes of critical evidence. See, e.g, Rogala v. Syracuse Housing Authority, 272 A.D.2d 888, 707 N.Y.S.2d 572 (2000) (holding that appropriate sanction for defendant's unexplained failure to locate architect's drawings in slip and fall case was order precluding defendant from offering evidence of drawings at trial); Kirkland v. New York City Housing Authority, 236 A.D.2d 170, 666 N.Y.S.2d 609 (1st Dept. 1997) (holding that dismissal of third-party action was appropriate where stove, which was crucial evidence, was negligently destroyed) 10. It is patently insufficient to show that merely some documents were discarded. Parties alleging spoliation of evidence must demonstrate that the documents were relevant to issues that were or remain the subject of active or reasonably anticipated litigation. Einstein v. 3556795 1 3

357 LLC, 2009 N.Y. Misc. LEXIS 3636 at *29 (N.Y. Sup. Ct., Nov. 12, 2009) I (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)); see also Fitzpatrick v. Toy Industry Association, Inc., 2009 N.Y. Misc. LEXIS 4122 at *12-13 (N.Y. Sup. Ct. Jan. 5, 2009)2 2009) (noting that evidence allegedly destroyed must be "key to support a claim or defense" and courts should consider existence of "independent evidence that permits a party to adequately prepare its case."). 11. Further, it is the burden of the party seeking to impose sanctions to establish three elements: "(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a 'culpable state of mind' [;] and (3) that the destroyed evidence was 'relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Einstein, 2009 N.Y. Misc. LEXIS 3636 at *29 (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004)). Plaintiff has not met this burden and thus sanctions are improper. 12. Burnham had no legal duty to comply with its own, internal document retention policy. Burnham's legal duty to preserve any and all documents relating to asbestos commenced when they were first sued in an asbestos case. The legal duty to preserve relevant documents began then, and only then. See Zubulake, 220 F.R.D. at 216 (S.D.N.Y.2003)("The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.") 13. Plaintiff's attempt to litigate whether or not Burnham complied with its own company policy is irrelevant and confuses the central allegation that Burnham spoliated relevant evidence. Plaintiff assumes that, before Burnham was sued in "asbestos litigation," relevant ¹ Attached to DeCotiis Affirmation as Exhibit A. 2 Attached to DeCotiis Affirmation as Exhibit B. 3556795 1 4

documents existed solely because of Burnham's internal document retention policy. To be clear, whether Burnham followed its own internal document retention policy prior to litigation is a red herring and should be ignored. 14. Further, Plaintiff has misrepresented to the Court and repeatedly relies on the misrepresentation that there is one "lone card from 1974." Plaintiff has in her possession, and has listed on her exhibit lists in this case multiple requisition cards from Burnham from the 1980s that were produced at Fred Kendall's deposition in 1991. 15. Indeed, Plaintiff had no good faith basis to ask Mr. Pepper if Burnham had no other requisition cards when Plaintiff knew and had possession of other requisition cards. Those cards are not relevant to Mr. Macaluso's alleged exposure, but the fact remains that Plaintiff is fully aware that there is not "one lone card from 1974" and this entire motion is based on that misrepresented fact. 16. There is simply no evidence that Burnham destroyed any relevant evidence connected to this case, or at any time during the pendency of "asbestos litigation." Plaintiff's argument presupposes three key facts that are needed to connect her argument, facts that have no support in the evidence and would require rank speculation: one, that there are missing requisition cards, two, that Burnham was using requisition cards to purchase asbestos containing materials, and three, that those requisition cards were destroyed after it was on notice that litigation had begun against it. 17. Any argument about what the "missing" requisition cards referenced is speculation and Plaintiff has come forward with no proof that that "the destroyed evidence was 'relevant' to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense." Einstein, 2009 N.Y. Misc. LEXIS 3636 at *29 (citing 3556795 1 5

Zubulake, 229 F.R.D.at 430). 18. Plaintiff would like the Court to just assume that any requisition card from 1974 on would have dealt with the purchase of asbestos and rests her entire motion on this assumption, but that is simply belied by all the evidence in the record. Mere speculation that records that may party' have been relevant might have been destroyed is patently insufficient to meet the moving party's burden of proof. See, e.g., Fitzpatrick, 2009 N.Y. Misc. LEXIS 4122 at *15, 20-23.. 19. Even assuming arguendo that the requisition cards in question were relevant, there is also simply no evidence that Burnham destroyed anything with a "culpable state of mind." As there is no evidence of intentional conduct, Plaintiff must prove the documents were destroyed negligently. Where the alleged destruction of evidence was the product of negligence rather than willfulness, the party seeking sanctions must demonstrate the relevance of the discarded documents with extrinsic evidence. Einstein 2009 N.Y. Misc. LEXIS 3636 at *28 (citing Arista Records LLC v Usenet.com, Inc., 608 F. Supp. 2d 409, 439-40 (S.D.N.Y. 2009)). Plaintiff has presented no extrinsic evidence that any allegedly destroyed requisition cards would have been relevant to Mr. Macaluso's exposure, other than by showing a 1974 requisition card that was relevant. To ask this Court to find that one relevant requisition card makes all requisition cards relevant is speculative and not based in any facts in the record. 20. In fact, any requisition card from 1982 or later is patently irrelevant to this case as Mr. Macaluso's alleged exposure to Burnham boilers ended in 1982 and by his own admission was from Burnham boilers manufactured decades earlier. Any purchase of asbestos, regardless of type, from 1982 on is irrelevant. Even if were to assume that the requisition cards discussed asbestos, Plaintiff cannot show prejudice from these temporally irrelevant cards. See Einstein, 2009 N.Y. Misc. LEXIS 3636 at *26 ("the lynchpin for spoliation sanctions under New York 3556795 1 6

law, is prejudice"). 21. Plaintiff's request to strike Burnham's answer, or in the alternative, to ask for an adverse inference charge that "Burnham ordered and used amosite asbestos" is a drastic measure that would require far more factual support than Plaintiff has presented here. Striking the nonmovant's pleading is "warranted only where the spoliation results from the intentional destruction of evidence or where a party's ability to defend the action is fatally compromised." Johnson v. Ayyub, 115 A.D.3d 1191 (4th Dep't 2014); see also Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d 717, 718 (2d Dep't 2009). This is clearly not the case and Plaintiff's motion to strike Burnham's answer should be flatly denied. 22. Plaintiff relies on DiDomenico v. Aeromatik Supplies, Inc., 252 A.D.2d 41 (2d Dept 1998) to support her request to strike Burnham's answer. In that case, the Court found that the "spoliator" UPS's actions in refusing to answer discovery and subsequently disposing of the defective package which had allegedly caused plaintiff's injuries, were "with knowledge, with persistence, without explanation or excuse, and in violation of two court orders, [and] its behavior was clearly wilful, with knowledge, with persistence, without explanation or excuse, and in violation of two court orders, its behavior was clearly wilful. Domenico 252 A.D.2d at 43. Plaintiff cannot and does not argue that Burnham's alleged failure to maintain arguably irrelevant requisition cards rises to this level, and thus the remedy of striking Burnham's answer would be extreme and not supported by case law. 23. Burnham had no legal duty to maintain any documents regarding asbestos prior to when they were first sued in asbestos litigation. There has also been no evidence presented in this case that any requisition card relating to asbestos ever existed at any time after Burnham was placed on notice that they had been brought into the "asbestos litigation" or that any allegedly 3556795 1 7

relevant requisition cards were destroyed. Additionally, any reliance on the testimony of Mr. Pepper that he had seen requisition cards in the early 1990's is misplaced. There is no evidence that these requisition cards had anything to do with asbestos - as they did not. Mr. Pepper has testified that he had not seen or been involved with asbestos in anyway prior to becoming involved as Burnham's corporate representative. 24. Further, even if this Court were to find that Burnham did destroy relevant evidence after they were aware of the litigation, which there is no evidence of, Plaintiff's alternative requested "remedy" that the Court instruct this jury that Burnham ordered and used amosite asbestos has no logical connection to the allegedly spoliated evidence. Plaintiff has produced no evidence to support a connection that simply because the cards were allegedly destroyed, that they discussed amosite asbestos fibers as opposed to any other type of asbestos. Again, there is simply no evidence in this case that Burnham ever purchased amosite asbestos for use with its boilers. If anything, the proper instruction would be "Burnham destroyed requisition cards from the 1980s and you can infer that these requisition cards contained information regarding the purchase of asbestos containing products," but Burnham maintains that there is no evidence of spoliation and thus no instruction is necessary or permitted by case law. This illogical unrelated instruction illustrates that Plaintiffs are grasping at straws in order strike Burnham's properly admitted evidence, that the only type of fiber used in association with Burnham boilers were chrysotile fibers. 25. Based on the state of the evidence, and the fact that Plaintiff has closed her case, Burnham requests that this Court find as a matter of law that the only type of fiber used in association with Burnham boilers were chrysotile fibers. Plaintiff has put forth no evidence that Burnham used anything other than chrysotile fibers in association with its boilers. To allow 3556795 1 8

Plaintiff to argue that Burnham may have used amosite in their boilers, a contention completely unsupported in any evidence, would require the jury to improperly speculate and thus prejudice Burnham. The evidence is clear and the Court should instruct the jury that Burnham only purchased or incorporated chrysotile asbestos into its boilers. 26. Plaintiff's improper, last minute desperate attempt to deny Burnham the right to defend itself at trial should not be countenanced by this Court and her motion in limine should be denied, and Burnham motion to request this hold and so instruct the jury that as a matter of law, the only asbestos fibers associated with Burnham boilers are chrysotile asbestos fibers McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP Attorneys for Defendant Burnham LLC gh c eco us Dated: April 4, 2018 Morristown, New Jersey 3556795 1 9