SIMMONS HANLY CONROY 5IMMONSFIRM.COM. A NATIONAL LAW FIRM (800) 479-9533 From the desk of James M. Kramer March 30, 2018 Justice Manuel Mendez 71 Thomas Street Room 210 New York, NY 10013 Re: Mary Murphy-Claggett v. A.O. Smith Corp., et al., 190311/2015 Justice Mendez, Plaintiff writes requesting an Order preventing Defendant A.O. Smith Corp. ("A.O. ) from entering into evidence or reading to the jury any portions of offered documents from non-party, non-defendant H.B. Smith. Plaintiff's requested Order comes following this Court's previous ruling excluding A.O. Smith from calling a witness from H.B. Smith to testify regarding any matter other than the authenticity of H.B. Smith business records. Given the evidence in the instant case, which includes the admission by A.O. Smith's own corporate representative that nowhere in all of Plaintiff Pietro Macaluso's testimony was there ever an identification of an "H.B. boiler, there is no evidence to ever connect an H.B. Smith boiler to Mr. Macaluso's exposure, rendering any document offered regarding such a boiler not only irrelevant, but purposefully confusing and conjectural. A.O. Smith's repeated argument that the jury should be permitted to consider its H.B. Smith evidence entirely misses the point of well-settled law in this State; namely that the jury should not be permitted to guess at what may have occurred in light of evidence showing what more likely than not occurred. See Ruggiero v. Cardella Trucking Co., 16 A.D.3d 342, 344 (1st Dep't 2005). Despite its protestations, A.O. Smith simply cannot cite any case law allowing the speculative shell game it would attempt to put before this jury. BACKGROUND As the Court is aware, Plaintiff Pietro Macaluso identified A.O. Smith boilers as well as his work disassembling them, producing dust which he breathed. Moreover, Mr. Macaluso's description of these boilers (steel, sectional boilers bearing the name "A.O. ) matches exactly a boiler sold by A.O. Smith, as proven both through A.O. Smith's corporate representative documents.1 as well as through A.O. Smith's own I Plaintiff's Exhibit 180 in evidence. We stand for our dients. Hi ADQUAW?I K\ NI W YORK ( HI{ AG0 5AN I na'h.a'i( I W 0 : 0 '. A G1t s s I. uul'. OneCourt Surcet I 12Madison Avenue 230W.Monroe 455Market 100N. SepuhedaHhd. 2'll s.iirmiston Alton.II.62002 NewYork,NY.scut Incifi Suitc 2221 Suite 1150 Suite 1350 Suite525 Itt (618)r,9-2222 fit (2t2)754-646o Chingo.II.60606 SanFrandsco,CA91I05 El Segundo.CA90245 St.1.nun.Mor:llos s IAX(6tM)259-2251 IAX (ill) 213-5949 ft t (U2) 7$9-7590 TEL (415) 16-1936 TEL(110)jJ2 j$½ TIL (kn) 479Q'i l [ fax(ttl) 7sts»7 sits fax (4I s)"sit 'telo IA)t ('IIo) 522.5Itss',
Furthermore, and importantly, at no time during any portion of this litigation did A.O. Smith ever sue H.B. Smith as a third-party defendant to establish H.B. Smith's actual liability, nor did A.O. Smith (or any other attorney) ever question Mr. Macaluso about any possible H.B. Smith identification he may have had, nor did they confront Mr. Macaluso with any H.B. Smith documents while he was alive. This last point is particularly crucial considering that only now, after Mr. Macaluso has succumbed to his disease, is A.O. Smith choosing to posthumously challenge his identification, a challenge Mr. Macaluso is now unable to address. Expecting Defendant's posthumous attack, Plaintiff first filed a motion in limine to preclude A.O. Smith from eliciting speculative testimony from a fact witness from H.B. Smith. After briefing and oral argument, this Court granted Plaintiff's motion, with the understanding that, based on how the evidence in the case unfolded, A.O. Smith could reserve the right to call a witness from H.B. Smith solely for purposes of authenticating H.B. Smith business records. [Trial Tr. at 3080-81]. Following the Court's ruling, counsel for Plaintiff agreed to stipulate to the authenticity of H.B. Smith documents, though reserved all rights to object to any H.B. Smith document's relevance, and thus admissibility. A.O. Smith has declined to accept Plaintiff's offered stipulation, choosing instead to engage in an exercise that, on the one hand, would unnecessarily waste the Court's and the jury's time (considering Plaintiff's offered stipulation), while on the other would allow A.O. Smith to attempt to read portions of H.B. Smith documents in the jury's presence to the H.B. Smith witness. Indeed, it is this latter exercise that is the true goal of A.O. Smith's use of this non-party witness. Given the evidence in this case, which includes only identification of A.O. Smith (including an exact description of the type of boiler A.O. Smith sold during the time period in question), and no identification of H.B. Smith in any manner, the introduction of any evidence of H.B. Smith's products would be improper and irrelevant. The fact that this tactic of confusion is A.O. Smith's only defense in this case, as it points out in its motion, is of no moment. As the evidence actually shows, Mr. Macaluso's testimony clearly describes an A.O. Smith boiler, as corroborated by other evidence in this case. Any attempt by A.O. Smith to now inject another manufacturer's boilers serves no purpose but to confuse this clear testimony when no evidence whatsoever has been established to in anyway call into question Plaintiff's clear identification. Pietro Macaluso's Identification Of A.O. Smith Cast-Iron Sectional Boilers The evidence in this case is clear. Pietro Macaluso unequivocally identified "A.O. boilers that were cast-iron, sectional, and were approximately three feet high. [See, e.g., Trial Tr. at 537:7-15, 538:5-8]. 2
Importantly, and contrary to A.O. Smith's repeated misstatements to the contrary, Mr. Macaluso did not know nor did he say that these boilers were oil-fired; rather, consistent with his other testimony, Mr. Macaluso did not know how these A.O. Smith boilers were fired. [Trial Tr. at 540:25-541:9]. Finally, A.O. Smith conceded that it sold A.O. Smith boilers that match this exact description. [Trial Tr. at 1707:8-1708:3; Plaintiff's Exhibit 180]. This is the actual, unchallenged evidence in this case. There is, by contrast, no competent evidence linking Mr. Macalsuo to an H.B. Smith boiler, nor will there ever be. Despite this unchallenged evidence, A.O. Smith would have the court admit evidence of an unidentified boiler simply because certain aspects are similar to what Mr. Macaluso described, despite his unchallenged, unequivocal testimony. Such an attempt is not supported by New York law, has already been duly rejected by this Court, and should not now be permitted. I. LEGAL STANDARD FOR ADMISSIBILITY OF RELEVANT EVIDENCE A. Prejudicial And Confusing Evidence - Such As A.O. Smith Seeks To Enter - Is Prohibited From Being Admitted It is axiomatic that the court, as the gatekeeper of the evidence, has the authority to determine the admissibility of evidence for consideration by the jury. Indeed, inherent in a court's power is the ability to keep unreliable evidence from the trier of fact. See, e.g., Clemente v. Blumenberg, 705 N.Y.S.2d 792, 799 (Sup. Ct. Richmond County Aug. 6, 1999). It is equally well-accepted in New York that speculative evidence lacking probative value (" is inadmissible. People v. Morris, 21 A.D.3d 830, 830-31 (1st Dep't 2005) ("The court properly exercised its discretion in precluding evidence suggesting that the instant crime might have been criminal" committed by an unidentified serial criminal"); Ruggiero v. Cardella Trucking Co., 16 A.D.3d 342, 344 (1st Dep't 2005) (speculative evidence identifying a defective cart that might have caused the plaintiff's injury rejected where no competent evidence existed to support the claim). Moreover, it is a long-held truth in this State that "it is not enough to create the suspicion of wrong, truth." nor should a jury be permitted to guess at the In re Massey's Will, 257 N.Y.S. 578, 580-81 (Sup. Ct., King's County 1932) (internal citation omitted) (emphasis added); see also Tresgallo v. Danica, LLC, 286 A.D.2d 326, 326 (2d 2001) (where party was unable to identify the cause of her injury, jury would have been left to impermissibly speculate as to the cause of the accident). A Court may exclude evidence if its probative value is outweighed by the prospect of, inter alia, "undue prejudice to the opposing party, confusing the issues or misleading the jury." People v. Primo, 96 N.Y.2d 351, 355 (2001) (internal citations omitted). As here, where A.O. Smith seeks to introduce the possibility of an alternate exposure by a non-party, evidence "of merely slight, 3
remote or conjectural significance will ordinarily be insufficiently probative to risks." outweigh these countervailing Id. at 355-56 (internal citations omitted). To reach value." sufficient level to be considered probative, "the evidence must be of more than "slight a People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981) (quoting People v. Allweiss, 48 N.Y.2d 40, 47 (1979)). defendants' New York courts have likewise denied attempts to introduce similarly conjectural evidence because of its significant prejudicial effect. As just one example, the plaintiff in Tyre v. Merritt Construction, Inc., 2015 WL 10458472 *1, *1 (Sup. Ct., Greene County, Apr. 10, 2015), filed a motion in limine seeking to preclude the defendant "from offering into proof that accident." Plaintiff may have smoked marijuana the morning of her car (emphasis in original). The plaintiff further asserted that the police department made no mention of marijuana, no charges were brought against the plaintiff, and no competent evidence existed to corroborate that defendant's theory. Id. The court thus determined that the prejudicial effect of allowing such conjectural evidence outweighed any probative effect it may have had. Id. at *4. Furthermore, and significant to the instant matter, since plaintiff's deposition testimony did not support that she was impaired during her car accident, the court remained concerned that allowing the possibility of marijuana use to be introduced "would mislead the jury into looking for an impairment record." when it is contrary to the Id. (emphasis added). "rational Even Defendant in its brief is forced to concede, as it must, that only evidence having value" probative may be admitted into evidence. Ando v. Woodbury, 8 N.Y.2d 165, 167 (1960) (emphasis added). The key here is whether any evidence of H.B. Smith's boilers is "rational." Indeed, it is not. As reiterated to this Court on numerous occasions, there is simply no credible evidence in this case linking Mr. Macaluso's exposures to an H.B. Smith boiler, and there never will be. Even Mr. Plank was forced to admit that there was not a single reference to an H.B. Smith boiler at any point in Mr. Macaluso's testimony. [Trial Tr. at 2746:10-2747:9]. Faced with this reality, A.O. Smith would have the Court admit business records (and apparently, testimony) from H.B. Smith to confuse what is exceedingly clear. Controlling New York law, however, does not tolerate such a tactic, and such an attempt should now likewise be wholly rejected. Ruggiero, 16 A.D.3d at 344 (1st Dep't 2005) (speculative evidence identifying a defective cart that might have caused the plaintiff's injury rejected where no competent evidence existed to support the claim). B. A.O. Smith's Choice To Attempt To Admit Evidence It Had Full Opportunity To Present To Plaintiff While He Was Alive And Able To Address Such Evidence Forecloses The Admission Of That Evidence Now A.O. Smith's argument that only the rights of those involved in criminal cases are protected one' from the type of ambush Defendant now proposes is simply incorrect. The right to confront one's 4
accusers and to have the ability to defend one's self from improper inconsistencies in testimony protected in all aspects of the law, including civil proceedings. See, e.g., Sterigou v. New York City Dept. of Educ., 106 A.D.3d 511, 512 (1st Dep't 2013) (inability of petitioner to confront her accuser during an administrative hearing violated her constitutional right to confront the witnesses against her, thus warranting reversal); Morris v. Palmier Oil Co., Inc., 94 A.D.2d 911, 911-12 (2d Dep't 1983) (where party failed to present evidence of a prior inconsistent statement during cross examination of a witness, party was precluded from later introducing that statement). A.O. Smith's attempt to now insert evidence into trial without the deceased Plaintiff's opportunity to challenge or in any way address that evidence is prejudicially improper at best, and a due process violation at worst. II. ANY KNOWING VIOLATION OF THE COURT'S CLEAR ORDER IN THIS CASE SHOULD BE MET WITH THE STRONGEST SANCTIONS, PARTIES' INCLUDING THE ENTIRETY OF THE COSTS SHOULD A.O. SMITH'S ATTEMPT TO VIOLATE THE COURT'S ORDER RESULT IN A DEFENSE-DRIVEN MISTRIAL Smiths' A.O. misunderstanding of the law aside, perhaps most shocking (and disturbing) is its apparent threat to the parties and the Court that they are on "notice" of A.O. Smith's intention to elicit testimony from the H.B. Smith witness beyond that which the Court has explicitly stated they are permitted to do. Such a tactic, while unprecedented, appears to have no purpose other than to knowingly disregard this Court's order, and invoke a mistrial in a desperate attempt to evade liability from the jury. Such actions, which A.O. Smith fully embraces in its very motion, should be rejected and prohibited immediately. The Court of Appeals has been clear in its condemnation of violations of court orders, stating repeatedly that a party's blatant disregard of a court order is grounds for sanctions, which may include the striking of the offending party's answer in its entirety. See Tewari v. Tsoutsouras, 75 N.Y.2d 1, 10-11 (1989) (failure to comply with a court order could result in dismissal); Reynolds Sec. v. Underwriters Bank & Trust Co., 44 N.Y.2d 568 (1978) (willful failure to comply with court order warranted striking of answer and entry of default judgment). Such well-established law should of course be applied in the instant matter should A.O. Smith attempt to carry through with its threat upon the Court. Indeed, it is A.O. Smith that should be on notice that Plaintiff will be seeking default judgment against them and the strongest sanctions should it choose to willfully violate this Court's Order. And that Order is clear. Indeed, this Court stated in no equivocal terms, based on the exact arguments presented herein that: 5
I think that putting this witness before this jury, especially after Mr. Macaluso has already been deposed and identified and stated that the boilers that he worked on were A.O. Smith boilers, would confuse the jury and cause them to speculate. So, I [sic] I'm precluding the H.B. Smith corporate witness from testifying. [Trial Tr. at 31:20-26]. The Court's proper determination was then reiterated when, unabashed, A.O. Smith voiced its intent to call the H.B. Smith witness despite the Court's Order: You may not get to ask [questions about H.B. Smith documents] you wanted to ask.... If that doesn't happen, then - you know, I hear what the plaintiffs are saying. [Trial Tr. at 3080:6-10]. Defendant's position appears to be that, despite the Court's ruling, it still intends to elicit necessary.2 testimony, by any means necessary, For all the reasons stated in support of Plaintiff's initial motion to preclude the H.B. Smith witness (which the Court granted), as well as all arguments previously made on the record in this case as well as those argument stated herein, A.O. Smith's defense of distraction should be rejected, and counsel for A.O. Smith should be strongly cautioned to stay within the parameters of this Court's previous Order. Respectfully submitted, zl '~C~â es M. Kramer, Esq. Daniel P. Blouin, Esq. Cc: All counsel of record (via NYSECF) 2 On March 21, 2018, after extensive discussion off the record, the Court informed all parties that an intentional attempt by any party to draw a mistrial would result in that party's covering the costs of the advis[ing]" entire trial for all parties involved. A.O. Smith's "hereby the Court [A.O. Smith Letter at 4] of its intent cannot be read in any other way than as a warning of its forthcoming attempt to violate a Court order, and thus also risk the possibility of mistrial. 6