FILED NEW YORK COUNTY CLERK 10/14/2016 0540 PM INDEX NO. 190087/2014 NYSCEF DOC. NO. 253 RECEIVED NYSCEF 10/14/2016 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, FIRST DEPARTMENT --------------------------------------------------------------- WALTER MILLER, BMW OF NORTH AMERICA, et al., v. Plaintiff-Respondent, Defendant-Appellant --------------------------------------------------------------- x x Index No. 190087/2014 PRE-ARGUMENT STATEMENT Defendant-Appellant Hennessy Industries, Inc. (hereinafter Ammco ) respectfully submits this Pre-Argument Statement pursuant to Section 600.17 of the Rules of this Court 1. Title of the Action The title of this action is set forth in the above caption. 2. Full Names of Original Parties and Changes in Parties The full names of the parties in the original action are Plaintiff Walter Miller Defendants ATK Launch Systems Group, individually and successor in interest to the Friction Division of Thiokol Corporation; BMW of North America, LLC, Borgwarner Morse Tec, Inc.; as successor-by-merger to Borg-Warner Corporation; Chevron Texaco Corporation; Continental AG; Continental Automotive Systems, Inc., f/k/a Continental Teves, Inc.; Dana Companies LLC, f/k/a Dana Corporation; Federal-Mogul Asbestos Personal Injury Trust, successor in interest to Felt Products Manufacturing Co.; Ford Motor Company; Genuine Parts Company; Hennessy Industries; Honeywell International, Inc., f/k/a Allied Signal Inc./Bendix; McCord Corporation; Mercedes Benz USA, LLC; Rapid Auto Parts; Route 59 Auto Parts, Inc.; The Pep Boys Manny Moe and Jack of California, Inc.; Toyota Motor Sales U.S.A., Inc.; Union Carbide Corporation; Volkswagen Group of America, Inc.; Waterfest Events, Inc., as successor in interest to Rapid Auto Parts. The following parties were subsequently added Defendants Morton International, Inc.; Bi-State Brake Co., Inc. 1 of 5
3. Name, Address, and Telephone Number of Counsel for Defendant-Appellant Roy L. Reardon Michael J. Garvey SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, New York 10017 (212) 455-2000 4. Name, Address, and Telephone Number of Counsel for Plaintiff-Respondent David Chandler Douglas von Oiste KARST & VON OISTE LLP 576 Fifth Avenue, Suite 706 New York, NY 10036 (212) 764-3900 5. Court and County From Which Appeal Is Taken Supreme Court of the State of New York, County of New York. 6. Nature and Object of the Cause of Action As relevant to this appeal, Plaintiff brought a products liability action against Ammco, among others, for asbestos-related injuries. Plaintiff contends that, for less than seven hours during his 40-year career as a mechanic, he used an Ammco brake grinder, which does not contain asbestos, to grind other manufacturers asbestos-containing brakes and was thereby exposed to asbestos. Ammco never manufactured or sold any asbestos-containing product, played no role in placing any asbestos-containing product into the stream of commerce, and did not financially benefit from the sale of any asbestos-containing product. Rather, Ammco merely sold tools that could be used with asbestos-containing and non-asbestos-containing products alike. Plaintiff acknowledges that, over the course of his life, he was exposed to a variety of other manufacturers asbestos-containing products in connection with different activities while using other tools. 2 2 of 5
7. Result Reached in the Court Below On May 19, 2015, the trial court denied Ammco s motion for summary judgment that argued Ammco had no duty to warn of the dangers of using its brake grinding equipment with asbestos-containing brakes because Ammco brake grinding machines were not specifically designed or intended to be used with asbestos-containing brakes and Ammco never provided or recommended the use of asbestos-containing brakes. On September 8, 2015, the trial court denied Ammco s motion in limine to, among other things, preclude the opinions of Plaintiff s experts on causation. On September 16, 2015, the trial court instructed Ammco to reserve its motion for a directed verdict and incorporate it into any post-trial motion to set aside an adverse verdict. On September 28, 2015, the jury returned a $25 million verdict in favor of Plaintiff, found Ammco 86% at fault, and concluded that Ammco had acted with reckless disregard of Plaintiff s safety such that Ammco should be responsible for 100% of the award. Ammco thereafter moved for entry of judgment notwithstanding the verdict, a new trial, or, in the alternative, remittitur of damages. On May 4, 2016, the trial court filed an Amended Decision/Order, dated May 3, 2016, denying Ammco s motion except to extent of vacating the award of past and future pain and suffering and ordering a new trial on this issue unless Plaintiff timely stipulated to reduce the award of past pain and suffering to $5 million and the award of future pain and suffering to $4 million. Plaintiff entered his stipulation to the award on June 6, 2016, and the trial court entered judgment on September 13, 2016. A copy of the judgment is attached hereto as Exhibit A, and a copy of the Amended Decision/Order is attached hereto as Exhibit B. 3 3 of 5
8. Grounds for Seeking Reversal Ammco is entitled to judgment or, at a minimum, a new trial for at least six reasons. First, Ammco did not owe Plaintiff a legal duty to warn about the dangers of asbestos in automobile brakes, a product it did not manufacture. Second, the evidence proffered by Plaintiff at trial was legally insufficient to establish causation under New York law. Third, Ammco was entitled to a new trial as a result of the improper request of Plaintiff s counsel, during Plaintiff s opening statement, that the jury award Plaintiff $50 million in damages. Fourth, the court charged the jury with an erroneous instruction on the legal standard for reckless disregard under CPLR 1602(7). Fifth, the jury s allocation of fault between Ammco, on the one hand, and nine of the Article 16 defendants that actually profited from the sale of asbestos-containing products, on the other hand, was against the weight of the evidence. Sixth, the evidence offered at trial was insufficient to support the jury s findings that Plaintiff used an Ammco grinder and that Ammco failed to exercise reasonable care by marketing its grinders without an adequate warning. In the alternative, Ammco is entitled to a new trial or remittitur because the reduced damages award of $9 million remains excessive, in light of the evidence and based upon comparable cases decided by this Court. 9. Related Actions or Proceedings There are no additional actions or proceedings now pending between the parties in any court of this or any other jurisdiction. Dated New York, New York October 14, 2016 Respectfully submitted, SIMPSON THACHER & BARTLETT LLP By /s/ Michael J. Garvey Michael J. Garvey 4 4 of 5
Alexander Li Eamonn W. Campbell 425 Lexington Avenue New York, New York 10017 Telephone (212) 455-2000 Attorneys for Defendant-Appellant Hennessy Industries, Inc. 5 5 of 5